Henderson v. State

• Court: Supreme Court of Georgia
• Writing for the Court: LUMPKIN
• Citation: 51 S.E. 764,123 Ga. 739
• Parties: HENDERSON. v. STATE.
• Decision Date: 04 August 1905

123 Ga. 739
51 S.E. 764

HENDERSON.
v.
STATE.

Supreme Court of Georgia.

Aug. 4, 1905.

1. Criminal Law — Appeal — Review — Assignments of Error.

Where an assignment of error depends on a recital of facts, and it appears from a note of the presiding judge and also from another part of the bill of exceptions that such recital is substantially incorrect, such assignment will be disregarded.

2. Same—Motion for New Trial—Brief of Evidence—Necessity—Direct Bill of Exceptions.

In any case where the judgment, decree, or verdict has necessarily been controlled by one or more rulings, orders, decisions, or charges of the court, and the losing party desires to except to such judgment, decree, or verdict, and to assign error on the ruling, order, decision, or charge of the court, he is not bound to make a motion for a new trial or file a brief of the evidence, but may present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the Supreme Court to clearly understand the ruling, order, decision, or charge complained of. But this rule does not authorize the segregation and bringing to this court, by direct bill of exceptions, of every alleged error committed in the course of a trial. It only authorizes this to be done by such direct and brief form of bill of exceptions in cases where the judgment, decree, or verdict has necessarily been controlled by such rulings, orders, decisions, or charges; and this must be made to appear. Except in such instances, the case should be brought up in the usual form, in order that this court may view the rulings complained of in the light of their context and surroundings.

(Syllabus by the Court.)

1. Appeal—Assignment of Errors.

The assignment of error with which the majority of the court declines to deal would have been authorized according to the established common-law practice in courts which had jurisdiction to review decisions of other courts upon writs of error.

2. Same.

The common-law practice in such cases was recognized in this state by a line of physical precedents, unquestioned by the bar and uncriticised by the bench from the time the Supreme Court was established in 1846 until 1898.

3. Same.

The act of 1898 (Van Epps' Code Supp. § 6241) was held in Taylor v. Reese, 33 S. E. 917, 108 Ga. 379, to be merely declaratory of the existing common-law practice.

4. Same.

The assignment of error is In accordance with the ruling of the majority in Cawthon v. State, 46 S. E. 897, 119 Ga. 395. No sufficient reason appears why that decision should not be followed.

5. Same.

I concur in the ruling made in the first headnote.

6. Same.

I dissent so far as the refusal to consider the other assignment of error is concerned.

Per Cobb, J., dissenting.

Error from Superior Court Webster County; Z. A. Littlejohn, Judge.

Homer Henderson was convicted of simple larceny, and brings error. Dismissed.

Homer Henderson was indicted for simple larceny. When the case was called for trial, a practicing attorney stated to the court that he wished bis name to be marked for the state to assist the Solicitor General, as he had been employéd by the prosecutor. Defendant's counsel objected to the appearance of the attorney on behalf of the state, claiming that he had disqualified himself from appearing for the state by reason of certain communications and negotiations which had passed between him and the defendant in regard to his representing the latter. The court overruled the objection, and the defendant assigned error on the ruling. The only other assignment of error is in the following words: "The following is a copy of the indictment from which it will

[51 S.E. 765]

appear that the defendant was not arraigned, and that he was not furnished a copy of the indictment, or a list of the witnesses sworn before the grand jury against him, nor did he waive the latter, to all of which defendant then and there excepted, and now assigns the same as error. Defendant insists that he should have been furnished with a copy of the bill of indictment, and, should have been allowed to plead guilty or not guilty." The presiding judge added to this statement the following note: "Defendant's counsel was asked by the Solicitor General if he would waive arraignment and plead not guilty and sign the waiver. Defendant's counsel replied he would; and it was not known to the court that defendant's counsel did not sign the waiver of copy indictment and list of witnesses, as the matter was never again mentioned." The copy of the indictment contained in the bill of exceptions shows that there was on it the following entry: "The defendant, Homer Henderson, waives being arraigned and pleads not guilty. [Signed] F. A. Hooper, Solicitor General." There was also on the indictment an entry of the waiver of the copy of the bill of indictment and list of witnesses sworn before the grand jury. This was not signed.

Payton & Hay, for plaintiff in error.

F. A. Hooper, Sol. Gen., for the State.

LUMPKIN, J. (after stating the facts). 1. The assignment of error to the effect that the indictment showed that there was no arraignment, and that the defendant was not furnished with a copy of the indictment and list of witnesses, and did not waive this, cannot be considered. The assignment of error refers to the indictment for verification; but an examination of it shows that an entry was made by the Solicitor General of a waiver of arraignment by the defendant and the entering of a plea of not guilty. The presiding judge also adds a note in which he negatives the claim that there was no waiver of the copy of indictment and list of witnesses, and shows that the defendant was not in any way cut off from the right to plead, but, on the contrary, agreed, through his counsel, to plead not guilty and waive the copy of the indictment and list of witnesses. The assignment is not verified, but rather negatives. See McBride v. Beck with, 67 Ga. 764; Fletcher v. Collins, 111 Ga. 253, 36 S. E. 646; Brice v. State, 117 Ga. 466, 43 S. E 715; Adams v. State, 117 Ga. 302, 43 S. E. 703. As to waiving arraignment, see Hudson v. State, 117 Ga. 704, 45 S. E. 66.

2. In the case at bar it is not necessary to decide whether or not, under the evidence, the relation of the attorney to the defendant was such as to preclude him from appearing for the prosecution, or whether, under the circumstances, the court erred in allowing such appearance. No motion for a new trial was made; nor was the evidence intro duced on the merits of the case brought up in the bill of exceptions; nor was any exception taken to any final judgment. Under these facts, we are unable to hold that the ruling of the court requires a new trial, whether it was correct or erroneous. In Brown v. Atlanta, 66 Ga. 76, it was said: "When plaintiff in error brings a case here, he must show error which has hurt him. This court is not an expounder of theoretical law, but it administers practical law, and corrects only such errors as have practically wronged the complaining party." In Smith v. Smith, 112 Ga. 351, 37 S. E. 407, it was said: "When there is no motion for a new trial, an erroneous or inapt charge to the jury, which did not necessarily control their verdict against the plaintiff in error, will not be treated by this court as affording cause for reversing the judgment of the court below." In Ocean Steamship Co. v. Hamilton, 112 Ga. 901, 38 S. E. 204, it was said: "A party dissatisfied with a verdict cannot without filing a motion for a new trial, properly bring to this court for review any 'ruling, order, decision, or charge' of the court below which did not, either singly or in connection with another or others, necessarily control the finding against the plaintiff in error." In Ray v. Morgan, 112 Ga. 923, 38 S. E. 335, it was said: "As there was no motion for a new trial, and it plainly appears that none of the charges excepted to necessarily controlled the verdict against the plaintiff in error, these charges, even if for any reason inapplicable or erroneous, afford no cause for reversing the judgment of the court below." In Darien Bank v. Clarke Lumber Co., 112 Ga. 947, 951, 38 S. E. 363, the same ruling was made. In Cable Co. v. Parantha, 118 Ga. 913, 45 S. E. 787, it was said: "The charges of the court complained of by direct exceptions in this case, when considered in connection with the entire charge, the evidence, and the verdict rendered, do not appear to have been necessarily controlling." See, also, Price v. High, 108 Ga. 145, 33 S. E. 956; Johnson v. Willingham, 110 Ga. 307, 35 S. E. 117; Benton v. Singleton, 114 Ga. 548, 40 S. E. 811; Parker v. Medlock, 117 Ga. 813, 45 S. E. 61.

In Cawthon v. State, 119 Ga. 395, 46 S. E. 897, the practice in regard to carrying cases to the Supreme Court by direct bills of exceptions was discussed. The majority of the justices, as the court was then constituted, thought that the exceptions made in that case were reviewable by direct bill of exceptions. Fish, P. J., and Candler, J., dissented. The positions of the majority are learnedly and forcibly set out in the opinion of Mr. Justice Cobb. The positions of the minority are clearly stated by Mr. Presiding Justice Fish in a headnote, and Mr. Justice Candler in an opinion. A few suggestions will suffice to show some of the reasons which incline the writer to the view then entertained by a minority of the justices,

[51 S.E. 766]

ind convince him that the ruling excepted to in the present case cannot be cause for reversal, in the absence of a motion for a new trial or the bringing before this court of the evidence in the case. In the first place, the decisions already cited are directly in point, and at least two of them (Smith v. Smith, 112 Ga. 351, 37 S. E. 407, and Cable Co. v. Parantha, 118 Ga. 913, 45 S. E. 787) were concurred in by a full bench of six justices, and have never been overruled or modified. It was said by Mr. Justice Cobb, in the Cawthon Case,...