Henderson v. State
| Decision Date | 04 August 1905 |
| Parties | HENDERSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
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.
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.
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.
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.
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.
I concur in the ruling made in the first headnote.
I dissent so far as the refusal to consider the other assignment of error is concerned.
Error from Superior Court, Webster County; Z. A. Littlejohn, Judge.
Homer Henderson was convicted of simple larceny, and brings error. Dismissed.
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. Beckwith, 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 introduced 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: 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 and 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, that if anything said or ruled in the two cases last named was in conflict with Taylor v. Reese, 108 Ga. 379, 33 S.E. 917, the latter decision must yield to the earlier ruling. I do not think that there is any essential conflict. In Taylor v. Reese an application for mandamus was made to compel the presiding judge to certify a bill of exceptions, which he had refused to do on the ground that, in the absence of a motion for a new trial, he had no authority to do so. It appeared that the presiding judge cut the defendant off from the contention that, if any offense was committed at all, it was not murder, but a lower grade of homicide. An examination of the bills of exceptions (two cases being heard together) will show that the evidence was brought before this court, and that exceptions were taken to certain rulings which entirely excluded a substantial part of the defense, and thus controlled the case to the extent of preventing the jury from considering the question of whether the homicide was manslaughter or not, which was the only real issue; the killing not being denied. The mandamus was granted. It was said that the court would not consider the merits of the questions presented, or whether there was in fact reversible error, on the application for mandamus. Lumpkin, P.J., who wrote the opinion, said: "Such a practice would not only be anomalous, but, as a result thereof, it would frequently happen that cases of the utmost importance would, for all practical purposes, be finally determined before they reached this court in the manner prescribed by law, and that, too, without even notice to parties vitally interested." The report of the cases when heard on their merits (Taylor v. State, 108 Ga. 384, 34 S.W. 2) will show how entirely different were the bills of exceptions then under consideration from that now before the court. In the opinion it was said: "In view of Taylor's admission on the trial that he did the killing, and of the fact that he did not ask for a verdict of not guilty, but only that his offense be...
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