In re Lester

• Decision Date: 09 November 1886
• Citation: 77 Ga. 143
• Parties: In re LESTER, mayor.
• Court: Georgia Supreme Court

77 Ga. 143

In re LESTER, mayor.

Supreme Court of Georgia.

November 9, 1886

October Term, 1886.

The mayor of the city of Savannah, who is ex-officio the presiding judge of a court of record, is not subject to the subpœ na duces tecum, commanding him to bring into the superior court" the information docket" of his court, to be used in evidence before the grand jury either in a specified case or generally; and that officer, in refusing to obey such a precept, is not guilty of contempt of a process of the court, for which he is liable to be punished.

( a. )Th official action of the mayor's court can be shown only by its records, and if that action becomes material in an investigation before the grand jury in any specified case, it should be shown by a copy thereof duly certified by the clerk under the seal of the court.

( b. )The supervisory control of the superior court over inferior judicatories exists only for specified purposes, viz., either to correct errors in their proceedings in a particular case, or to command them to fulfill their official duties in such a case where, from any cause, a defect of legal justice would ensue from a failure or improper discharge of such duties, or to prohibit or arrest illegal proceedings by any officer of such courts, where no other legal remedy or relief is given, and where such interference is required by some principle of right necessity and justice.This jurisdiction is exercised by statutory writs, such as certiorari, mandamus or prohibition.But an entire record cannot be removed from one court to another by a notice to the officers to produce it or by a subpœ na duces tecum directed to and served upon them.

( c. )While each member of the grand jury is under obligation to make diligent inquiry, and to present truly all infractions of the criminal law which may be given the body in charge, or may come to the knowledge of any of them touching the service in which they are engaged, and while the powers of that body are inquisitorial to a certain extent yet they have to be exercised within well defined limits.They can find no bill nor make any presentment, except upon the testimony of witnesses sworn in a particular case, where the party is charged with a specified offense; nor can theysubpœ na a witness to testify before them as to his general knowledge of violations of the penal laws, when the fact to be investigated has not been discovered by the grand jury or any member thereof, and when that body knows nothing of any person connected with or guilty of the offense.

( d. )It is not intimated that the State's prosecuting officer may not, if he sees proper to do so, make rseach for evidence and secure its forthcoming by serving subpœ nas upon witnesses in anticipation of the empanelling and qualification of the grand jury before whom the matter is to be investigated, provided he states in the subpœ na the names of the parties and the offense to be investigated.

( e. )In a proper case, a subpœ na duces tecum may issue in a cause pending before the grand jury or to be brought before that body.

Courts.Practice in Superior Court.Witness.Subpœ na.Jury and Jurors.Criminal Law.Before Judge ADAMS.Chatham Superior Court.March Term, 1886.

Five subpœ nas duces tecum were issued by the clerk of the superior court of Chatham county, November 17, 1885, directed to " Honorable Rufus E. Lester, mayor of the city of Savannah," calling upon him to be and appear at the superior court and to bring with him a certain book or docket, known as the information docket of the city council of Savannah, used during the months of September and October, 1885, and also the book or docket containing the disposition of cases tried before the mayor, to be used as evidence by the state in certain cases pending before the grand jury.Four of these stated the cases in which testimony was desired, while the fifth merely stated that it was in certain cases, without naming them.They were served, and upon the failure of the mayor to comply with their requirements, a rule nisi was issued against him, calling on him to show cause why he should not be attached for contempt.He answered that the statutory provision upon which these subpœ nas were based contemplated civil cases and not criminal proceedings before the grand jury; that when they were issued, none of the cases were pending cases; that the grand jury had not been organized and was not organized until the first Monday in December thereafter; that the subpœ nas did not show that the evidence was material, and it was neither material nor admissible; that the mayor of Savannah is the presiding officer and judge of the police court of that city, which is made by statutea court of record; and that one court of record has no authority to compel, by subpœ na, the production before it of the original records of another; and that the subpœ nas were not issued upon the order of the judge nor of the grand jury, but by the clerk solely on request of the solicitor-general.

The court held that the subpœ nas were legally issued, and refused to...