Jenkins v. State

• Citation: 18 S.E. 992,93 Ga. 1
• Parties: JENKINS v. STATE.
• Decision Date: 09 October 1893
• Court: Georgia Supreme Court

18 S.E. 992

93 Ga. 1

JENKINS v. STATE.

Supreme Court of Georgia

October 9, 1893

Syllabus by the Court.

1. By virtue of the act of October 19, 1891, a city court comes into legal existence as soon as a recommendation is made by the grand jury; and should this occur during a recess of the senate, and should the governor appoint and commission a judge of the court, who qualifies and enters upon the performance of his duties, he is a judge de facto, if not de jure, although his appointment has not been confirmed by the senate, and the court over which he presides may exercise such jurisdiction as is conferred upon it by law as effectually as if confirmation had taken place.

2. Where drunkenness was set up, not as an excuse for an admitted act, but to show physical inability to do the act at all, there was no error in charging: "While drunkenness is no excuse for crime, it is a fact which may be proven, as any other fact, to throw light on other facts or circumstances in the case."

3. The evidence of guilt was barely sufficient, but, the verdict having been approved by the presiding judge, this court will not reverse the judgment refusing a new trial.

Error from city court of Carroll county; W. F. Brown, Judge.

Will Jenkins was convicted of larceny, and brings error. Affirmed.

Cobb & Reese, for plaintiff in error.

Edgar Watkins, T. A. Atkinson, Sol. Gen., and Atkinson & Hall, for the State.

LUMPKIN J.

1. The act of October 19, 1891, (Acts 1890-91, vol. 1, p. 96,) declares "that upon the recommendation of the grand jury of any county of this state having a population of fifteen thousand or more, where the same does not now exist, there shall be, and the same is hereby established, a city court for said county; the powers, jurisdiction, officers and mode of selecting them of said court shall be the same as now prescribed by the act creating the city court of the city of Macon, approved August 14, 1885." The act creating the city court of Macon, above referred to, (Acts 1884-85, p 471,) provides "that there shall be a judge of said city court of Macon, who shall be appointed by the governor, by and with the advice and consent of the senate, whose term of office shall be four years, and all vacancies in the office of judge shall be filled by appointment, of the governor for the residue of the unexpired term, such appointment being subject to the approval of the senate which may be then in session, or if the senate be not in session at the time of such appointment, then subject to the approval of the senate at its next session thereafter." It appears from the record that, at the April term, 1893, of the superior court of Carroll county, the grand jury recommended the establishment of a city court for that county, and that soon thereafter the governor appointed Hon. W. F. Brown judge of that court, and issued to him a commission accordingly. At the time this appointment was made the general assembly was not in session, nor had there been any session up to the time of the trial of the accused. The point made by the plea to the jurisdiction filed by the accused was that, there having been no vacancy in the office of judge of the city court, nor any residue of any unexpired term, the governor had no legal right to appoint and commission a judge of this court. This plea recited that Carroll county had a population of at least 10,000. We are not advised as to why the number 10,000 was used. This was probably done by mistake or inadvertence. At any rate, no objection to the establishment of the city court is raised on the ground that this county had a population of less than 15,000. Indeed, the fact that its population was 15,000 or more seems to have been recognized by both sides. The only position insisted upon, so far as related to the question of jurisdiction, was that, the power of the governor being derived from the terms of the act creating the city court of Macon, adopted by the general city court act of 1891, no appointment made by him could be valid until after its confirmation by the senate,...