Griffin v. Eaves

• Decision Date: 06 November 1901
• Parties: GRIFFIN, Sheriff. v. EAVES.
• Court: Georgia Supreme Court

39 S.E. 913
114 Ga. 65

GRIFFIN, Sheriff.
v.
EAVES.

Supreme Court of Georgia.

Nov. 6, 1901.

HABEAS CORPUS—QUESTIONS NOT RAISED AT TRIAL—GENERAL AND SPECIAL STATUTES—CONSTITUTIONAL LAW.

1. One indicted, convicted, and sentenced under a repealed statute may be discharged by habeas corpus, if on the trial the question of the validity of such statute was not made and adjudicated against him. (a) On the trial in which the applicant for habeas corpus in the present case was convicted, the question whether or not the general statute making it an offense to retail or sell intoxicating liquor without license was operative in Bartow county was not made or passed upon.

2. The special local act of 1884 for Bartow county, if valid and constitutional, suspended as to that county the general statute above mentioned. (a) The question of the constitutionality of this Bartow county special act was not made on the trial wherein defendant in error was convicted.

3. The act, however, according to the principle ruled in Papworth v. State, 31 S. E. 402, 103 Ga. 36, and subsequent cases, is not constitutional, because it conflicts with the general domestic wine act of February 27, 1877, and is violative of that clause of the constitution which prohibits special legislation in any case for which provision has been made by an existing general law. This special act differs from the special act dealt with in Smith v. State, 37 S. E. 441, 112 Ga. 291.

4. It results from the foregoing that, inasmuch as the applicant in the proceeding under review was indicted and convicted under the general act first above mentioned, which is still of force in the county of Bartow, his conviction and sentence were legal, and consequently the court erred in discharging him from custody.

Little and Lewis, JJ., dissenting.

(Syllabus by the Court.)

Error from superior court, Bartow county; A. W. Fite, Judge.

Action by W. H. Eaves for writ of habeas corpus directed to R. L. Griffin, sheriff. From a judgment granting the writ, the sheriff brings error. Reversed.

Sam P. Maddox, Sol. Gen., and T. C. Milner, for plaintiff in error.

J. M. Neel, for defendant in error.

[39 S.E. 914]

FISH, J. The first question presented for our consideration is whether one Indicted, convicted, and sentenced for an act made penal by a statute repealed prior to the date the offense is alleged to have been committed can be discharged from custody by habeas corpus. This question has been practically answered in the affirmative by the decision of this court in Moore v. Wheeler, 109 Ga. 62, 35 S. E. 116. In that case Moore pleaded guilty to an indictment based upon an unconstitutional statute, and, after sentence, sued out a writ of habeas corpus to be discharged from custody. On the hearing he was remanded, but this court held, in reversing such ruling, that the court below erred, for the reason that, as the statute under which the indictment was framed was unconstitutional, the sentence was a mere nullity. In delivering the opinion, Presiding Justice Lumpkin said: "It seems to be now well settled that, where one is indicted and tried under an unconstitutional statute, he may, even after final conviction and sentence, obtain his discharge from custody on a writ of habeas corpus." A number of authorities were cited in support of this proposition. The reason for the rule is that an unconstitutional statute cannot make an act criminal. Such a statute is void, and is as no law. "A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment." A court has no power or jurisdiction to render a judgment punishing one for an act sought to be made criminal by an unconstitutional statute. Church, Hab. Corp. §§ 362, 368. If one indicted and tried under an unconstitutional statute may, after conviction, be discharged on habeas corpus, he may, for the same reason, be so discharged after conviction and sentence under an indictment based upon a statute repealed prior to the commission of the alleged offense. Church, Hab. Corp. § 374; In re Wright (Wyo.) 27 Pac. 565, 13 L. R. A. 748, 31 Am. St. Rep. 94. See, also, 9 Enc. Pl. & Prac. 1046. Counsel for plaintiff in error, in support of...