J. T. M. v. State

• Decision Date: 09 June 1977
• Docket Number: No. 53942,No. 3,53942,3
• Citation: 236 S.E.2d 764,142 Ga.App. 635
• Court: Georgia Court of Appeals
• Parties: J. T. M. v. STATE of Georgia

Page 764

236 S.E.2d 764

142 Ga.App. 635

J. T. M. v. STATE of Georgia.

No. 53942.

Court of Appeals of Georgia, Division No. 3.

June 9, 1977.

Rehearing Denied June 24, 1977.

William G. Posey, Joel E. Dodson, Douglasville, for appellant.

John T. Perren, Dist. Atty., Dallas, for appellee.

MARSHALL, Judge.

The 16-year-old appellant was arrested, charged with the offense of murder, brought before Douglas Superior Court pursuant to the provisions of Code Ann. § 24A-1402(a)(3) (Ga.L.1971, pp. 709, 723; 1973, pp. 882, 885), given a committal hearing authorized under Code Ch. 27-4 (erroneously designated Chapter 27-24 in § 24A-1402(a)(3), supra), and committed to the Marietta Regional Youth Development Center pursuant to an order of committal and detention.

Thereafter, the appellant's mother and brother filed a petition in the Juvenile Court of Douglas County, alleging that he was "deprived," and "unruly," and cited him for the offense of assault with a firearm or other deadly weapon. Notwithstanding a motion by the district attorney to dismiss the petition filed in the juvenile court because jurisdiction had already vested in superior court by virtue of his detention under the murder charge, the juvenile court conducted a transfer hearing pursuant to Code Ann. § 24A-2501 (Ga.L.1971, pp. 709, 736; 1973, pp. 882, 887). After the hearing, the juvenile court ordered the appellant transferred to Douglas Superior Court for prosecution, from which judgment he appeals. The appellant enumerates as error the overruling of his motion for a directed verdict on the issue of transferral at the close of the state's case; the trial judge's relying upon the nature of the delinquent act alleged on which to base his transferral; transferral where uncontradicted evidence was presented that the appellant is amenable to treatment or rehabilitation under the juvenile court statutes; the finding of fact that the appellant was a user of drugs; the finding of fact that the appellant would require a long period of time and intensive treatment for any possible rehabilitation; the finding of fact of a general lack of intensive treatment in the state-provided facilities; and the abuse of discretion in ordering the transfer.

The state moved to dismiss the appeal on the ground that the transferral order is not an appealable judgment, and no certificate for immediate review was obtained. Held:

1. For the reasons hereinafter set forth, the motion to dismiss on the ground relied upon by the state is denied.

Code Ann. § 24A-3801 (Ga.L.1971, pp. 709, 755) provides for appeals "in all cases of final judgments of a juvenile court judge," without defining " final judgments," Code Ann. § 6-701(a)(1) (Ga.L.1965, p. 18; 1968, pp. 1072, 1073; 1975, p. 758) provides for appeals "(w)here the judgment is final that is to say where the cause is no longer pending in the court below." (Emphasis supplied.) We construe the term "the court below" to be the court the judgment of which is sought to be appealed. So construed, the transferral order is final, since it operates to transfer the case to the superior court, after which the cause is no longer pending in "the court below," the juvenile court. We note that, although a certificate for immediate review was filed for the appeal from the denial of the juvenile's motion opposing transfer in J. J. v. State of Ga., 135 Ga.App. [142 Ga.App. 637] 660, 218 S.E.2d 668 (1975), this court has assumed jurisdiction of a number of appeals from judgments of transferral in which no certificate was obtained, e. g., C. L. A. v. State of Ga., 137 Ga.App. 511, 224 S.E.2d 491 (1976); J. G. B. v. State of Ga., 136 Ga.App. 75, 220 S.E.2d 79 (1975); R. E. D. v. State of Ga., 135 Ga.App. 776, 219 S.E.2d 24 (1975).

2. "Under the construction of Code Ann. § 24A-301(b) given by Brown (v. State, 235 Ga. 353, 219 S.E.2d 419 (1975)), the superior court and the juvenile court have concurrent jurisdiction over juveniles charged with capital offenses, and whichever court first takes jurisdiction over the matter in question may retain it, subject to the right of the juvenile court to transfer the case to the superior court under Code Ann. § 24A-2501." (Emphasis supplied.) Relyea v. State, 236 Ga. 299, 300, 223 S.E.2d 638, 639 (1976). For resolution in the present case is the construction of the phrase, "first takes jurisdiction over the matter in question."

In a narrow sense, jurisdiction of a particular case commences with the return of the indictment, presentment, or accusation. "(T)here can be no trial, nor demand for trial, until the defendant is accused, either by indictment, presentment, or accusation." Williamson v. State, 1 Ga.App. 657, 661, 57 S.E. 1079, 1081. The requirement for an indictment in capital felony cases is absolute and nonwaivable. Brown v. Caldwell, 231 Ga. 677, 203 S.E.2d 542 (1974); Keener v. MacDougall, 232 Ga. 273, 206 S.E.2d 519 (1974). See also 42 C.J.S. Indictments and Informations § 1, p. 833.

In a broader sense, however, jurisdiction over a particular matter commences at an earlier time. "Jurisdiction" is defined in Black's Law Dictionary (Rev. 4th ed.) inter alia as follows: "The word is a term of large and comprehensive import, and embraces every kind of judicial action . . . It is the authority by which courts and judicial officers take cognizance of and decide cases . . . the legal right by which judges exercise their authority . . . It is the authority, capacity, power or right to act, . . . enter on inquiry, . . . examine whether court has power to hear and determine controversy, . . . exercise judicial authority or power, . . . hear and determine . . . hear without determining, . . . inquire into facts, . . . put wheels of justice in motion and to proceed to determination of cause, . . . take cognizance . . . 'Jurisdiction of subject-matter' . . . is power to: . . . adjudge whether facts make proper case for...