Howell v. State
| Decision Date | 20 April 1927 |
| Docket Number | 5809. |
| Citation | 138 S.E. 206,164 Ga. 204 |
| Parties | HOWELL v. STATE. |
| Court | Georgia Supreme Court |
Rehearing Denied May 3, 1927.
Syllabus by the Court.
Section 4 of the act of August 16, 1924, known as the Electrocution Act, does not contain matter different from what is expressed in the title of the act, and is not unconstitutional upon the ground that it violates article 3, § 7, par. 8, of the Constitution of this state, which provides that: "No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof."
The language, "Within the walls of the state penitentiary at Milledgeville, Georgia," in section 1 of said act (Laws 1924, p. 195), means the state prison farm located near Milledgeville; and the language, "There shall be present at such execution the warden of the penitentiary," in section 4 of said act, means any warden of said prison, and embraces the superintendent of said prison, who is the warden of the male camp of said penitentiary.
[Ed Note.-For other definitions, see Words and Phrases, First and Second Series, Within.]
Those two sections of said act (Laws 1924, p. 195, §§ 1, 4), are not so vague and indefinite as to render them null and void.
The defendant is not being deprived of his life without due process of law and in violation of the due process clauses of the state and federal Constitutions.
The judge did not err in refusing to set aside the sentence.
Error from Superior Court, Houston County; H. A. Mathews, Judge.
John Howell was convicted of murder. To review an order resentencing the defendant, he brings error. Affirmed.
See also, 162 Ga. 14, 134 S.E. 59.
W. A McClellan and Walter DeFore, both of Macon, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., and J. E. Hall, both of Macon, and Geo. M. Napier, Atty. Gen., and T. R. Gress, Asst. Atty. Gen., for the State.
On June 17, 1925, Howell was convicted of murder, without recommendation, and was sentenced to be electrocuted on August 6, 1925. He made a motion for a new trial, which was overruled. He thereupon brought his case to this court to review the judgment overruling his motion for a new trial. The judgment of the trial court was affirmed by this court. Howell v. State, 162 Ga. 14, 134 S.E. 59. On September 15, 1926, Hon. H. A. Mathews, judge of Houston superior court, passed an order fixing a new date for his execution on October 5, 1926. Howell alleges that this order was not signed in term time, but in vacation, when Houston superior court was not in session, and in his absence when confined in the jail of Bibb county. During the November term, 1926, of Houston superior court, being the first term of said court to be held after the order of September 15, 1926, Howell presented to said judge his motion to set aside the sentence imposed upon him, on several grounds. Additional grounds were added to this motion by two amendments.
On December 4, 1926, sentence was again imposed upon the defendant, when he was present. To the imposition of this sentence he objected, and moved to set it aside upon the same grounds and for the same reasons as set up and urged in his said motion as amended. His counsel in their briefs state that in view of this new sentence imposed upon the defendant, many of the questions raised in the original motion to set aside "have been eliminated, and the main questions for" consideration by this court "are those raised in the two amendments to the original motion." These grounds are substantially: (a) That said last sentence is null and void, for the reason that it directs that the defendant be electrocuted by the warden of the penitentiary, who shall serve as executioner, when, under the law and as a matter of fact, there is no such person or official as the warden of the penitentiary; (b) that said sentence is null and void, in that it condemns defendant to death at the hands of an alleged person or official, when there is no such person or official, and it is therefore incapable of enforcement, and violates article 1, § 1, par. 3, of the Constitution of this state, which provides that "no person shall be deprived of life, liberty, or property, except by due process of law"; (c) that for the same reason said sentence violates the Fourteenth Amendment to the Constitution of the United States, which declares, "nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws"; (d) that section 4 of the Act of August 16, 1924 (Acts 1924, p. 195), is unconstitutional and void, because for the same reasons it violates the due process clauses of the state and federal Constitutions above set out; (e) that said section of said act is unconstitutional and void because it contains matter different from what is expressed in the title of said act, in that the title makes no reference to any provision designating any person who shall act as executioner, and is not sufficiently broad to include the conferring of power in its body upon the alleged person designated therein to serve as executioner, in consequence of which it violates article 3, § 7, par. 8, of the Constitution of this state, which provides, "No law or ordinance shall pass which refers to more than one subject-matter, or contains matter different from what is expressed in the title thereof"; (f) that said sentence is null and void, in that it condemns the defendant to be electrocuted at the state penitentiary at Milledgeville, Ga., or wherever the state penitentiary may be located, and within the walls of said penitentiary, on the date named, when in fact the state penitentiary is not located at Milledgeville, as the institution located near there is only the state farm, as the convict camps of the counties of the state are parts of the state penitentiary, if there is one, and as the state penitentiary, if there be one, is therefore located at no particular place, and that it violates the due process clauses of the state and federal Constitutions hereinbefore specified; (g) that section 1 of said act provides that all persons convicted after its passage of a capital crime, upon whom the death sentence is imposed, shall suffer punishment by electrocution within the walls of the state penitentiary at Milledgeville, or wherever the state penitentiary may be located, instead of hanging, when in fact there is no state penitentiary at Milledgeville, and it is unconstitutional and void because it is so vague and indefinite in its terms as to be incapable of enforcement, and for this reason violates the due process clauses of the state and federal Constitutions hereinbefore quoted; and (h) that there is not now, was not when defendant was sentenced, and has not been since said date, a state penitentiary in Georgia, and his sentence condemning him to death at the hands of the warden of the penitentiary, when there is and can be no such person and when there was no such person when he was sentenced is incapable of enforcement and is a mere nullity, and violates the due process clauses of the state and federal Constitutions above set out.
On the hearing of the defendant's objections to the imposition of said last sentence, it was agreed that the following resolutions had been adopted by the Prison Commission:
It was agreed that B. H. Dunaway has been filling the office of superintendent of the state prison farm under the first of the above resolutions, continuously since May 10, 1922, and that he has filled the office of warden of the male camp at the state prison farm under the second of said resolutions since January 1, 1923.
1. We deal first with the contention that section 4 of the Electrocution Act of August 16, 1924, contains matter different from what is expressed in the title of that act and that for this reason this section is unconstitutional, because it violates article 3, § 7,...
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