Johnson v. State
| Decision Date | 15 January 1930 |
| Docket Number | 7369. |
| Citation | 152 S.E. 76,169 Ga. 814 |
| Parties | JOHNSON v. STATE. |
| Court | Georgia Supreme Court |
Motion to Rehear Denied February 22, 1930.
Syllabus by the Court.
The act of August 18, 1919 (Acts 1919, p. 387), providing for indeterminate sentences, is not unconstitutional because it violates any of the following provisions of the Constitution of this state, to wit: (a) Article 1,§ 2, par. 1, which declares that, (b) Article 1, § 1, par. 23 which provides that "the legislative, judicial, and executive powers shall forever remain separate and distinct and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided." (c) Article 6, § 1, par. 1, which provides that "the judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, superior courts, courts of ordinary, justices of the peace commissioned notaries public, and such other courts as have been or may be established by law." The ruling in the third headnote in Cain v. State, 166 Ga. 539, 144 S.E. 6, is not applicable under the facts of this case.
The questions propounded by the court to a witness for the state which are fully set out in the second division of the opinion in this case, did not express or intimate an opinion of the judge as to what had or had not been proved, or as to the guilt of the accused; and the propounding of such questions did not violate section 1058 of the Penal Code, which declares that "it is error for the judge of the superior court, in any case, during its progress, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved, or as to the guilt of the accused."
To render admissible dying declarations as to the cause of his death and the person who killed him, they must be made by the declarant in the article of death, and he must be conscious of his condition.
(a) Consciousness on the part of the deceased that he was dying and was in extremis may be inferred, not only from his statements, but also from the nature of the wound and other circumstances.
(b) The actual period of survival after making the declaration is not controlling. The question does not depend upon the length of time between the declaration and the death of the declarant, but upon the declarant's mind at the time of the declaration, and his belief that he is in a dying condition.
(c) A prima facie case that deceased was in extremis and is conscious thereof is sufficient to admit dying declarations to the jury.
(d) Where the evidence disclosed that the defendant on Christmas Day shot the deceased with a pistol, the bullet entering the left side of the deceased just above the hip and severing the spinal cord, and where on the second day after the shooting the deceased made a declaration, stating to the person to whom it was made that he was not going to get well, and where he died about two months thereafter from sepsis and exhaustion as the result of the severance of his spinal cord, such facts made a prima facie case that he was in extremis and was conscious thereof, and was sufficient to authorize the judge to admit such dying declaration to the jury.
Dying declarations can be used by the accused for the purpose of showing his innocence. Where the defendant introduces dying declarations of the deceased for that purpose, the state can rebut the same by proving inconsistent declarations of the deceased tending to show that such dying declarations were not a true account of the homicide, or that they were made for a purpose which discredited their verity.
The evidence authorized the verdict.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
C. C. Johnson was convicted of voluntary manslaughter, and he brings error.
Affirmed.
Pierce Bros., of Augusta, for plaintiff in error.
George Hains, Sol. Gen., of Augusta, and John M. Graham, of Atlanta, for the State.
The jury in the trial of Johnson for murder found him guilty of voluntary manslaughter; and under the Act of August 18, 1919 (Acts 1919, p. 387), providing for indeterminate sentences, fixed his punishment at not more nor less than twenty years. He moved for a new trial upon the general and certain special grounds, and in arrest of judgment. The court overruled both motions, and the accused excepted.
1. Among the special grounds of his motion for new trial were these: (a) Said act is unconstitutional, because it violates article 1, § 2, par. 1, of the Constitution of this state, which declares that (b) Said act violates article 1, § 1, par. 23, of the Constitution of this state, which provides that "the legislative, judicial, and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided." (c) Said act is unconstitutional, because it violates article 6, § 1, par. 1, of the Constitution of this state, which provides that "the judicial powers of this State shall be vested in a Supreme Court, a Court of Appeals, superior courts, courts of ordinary, justices of the peace, commissioned notaries public, and such other courts as have been or may be established by law." The motion in arrest of judgment was based upon the same grounds.
Clearly this act does not violate the provision first set out above. It in no way impairs that portion of said provision which declares that the jury shall be the judges in all criminal cases of the law and the facts; nor does said act impinge upon the other portion of said provision which declares that the power of the judges to grant new trials in case of conviction shall be preserved. These powers are in no way affected by this act. They have the same force since the passage of this act as they did prior to its passage. The decision announced in the third headnote of Cain v. State, 166 Ga. 539, 144 S.E. 6, dealt with the act of 1927, which provides for the imposition of misdemeanor sentences in city courts in counties having a population between 60,000 and 70,000, which we held unconstitutional under the facts of that case, and is not applicable under the facts involved in this case.
The constitutionality of this act is further attacked upon the ground that it violates that provision of the Constitution of this state, which declares that "the legislative, judicial and executive powers shall forever remain separate and distinct, and no person discharging the duties of one shall at the same time exercise the functions of either of the others, except as herein provided." Civ. Code 1910, § 6379. Counsel for the defendant urges that the indeterminate sentence act, with which we are dealing, violates this provision of the Constitution, because it invades the province of the judiciary, and strips the judge of a constitutional court of a power vested in him by the Constitution and vests the same in the jury. We do not think that this attack is sound. The act provides "that the jury in their verdict on the trial of all cases of felony not punishable by life imprisonment shall prescribe a minimum and maximum term, which shall be within the minimum and maximum prescribed by law as the punishment for said crime, and the judge in imposing the sentence shall commit said convicted person to the penitentiary in accordance with the verdict of the jury." Acts 1919, p. 387, 11 Park's Code Supp. 1922, § 1081(e), Michie's Pen. Code, § 1060(1). The ground of attack upon the constitutionality of this act is based upon the premise that the power conferred by it upon the jury is vested by the Constitution in the judiciary, of which the Legislature cannot deprive it under this provision of this Constitution. Is this premise sound? This depends on whether the power exercised by the Legislature is judicial and not legislative. If this power is vested in the judicial department under the Constitution, that department cannot be deprived of it by the Legislature. Bradley v. State, 111 Ga. 168, 36 S.E. 630, 50 L.R.A. 691, 78 Am.St.Rep. 157; Williams v. State, 138 Ga. 168, 74 S.E. 1083. The power to create crimes and to prescribe punishment therefor is legislative. In Gibson v. State, 38 Ga. 571, this court held that, if a statute failed to fix a penalty for an offense, none could be inflicted. In Hill v. State, 53 Ga. 125, Judge McCay, who delivered the opinion of the court, said: The legislative power of this state is vested in the General Assembly. Civ. Code 1910, § 6410. All legislation is exclusively within the power of the Legislature. This being so, it can prescribe determinate or indeterminate sentences for crime.
In the absence of legislation, the judiciary cannot exercise discretion in fixing the quantum...
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