Johnson v. State, No. 7369.

• Decision Date: 15 January 1930
• Docket Number: No. 7369.
• Citation: 169 Ga. 814,152 S.E. 76
• Parties: JOHNSON. v. STATE.
• Court: Georgia Supreme Court

169 Ga. 814

152 S.E. 76

JOHNSON.
v.
STATE.

No. 7369.

Supreme Court of Georgia.

Jan. 15, 1930.

Motion to Rehear Denied Feb. 22, 1930.

Syllabus by the Court.[152 S.E. 77]

Atkinson, J., and Russell, C. J., dissenting.

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.

HINES, J. 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

[152 S.E. 78]

is unconstitutional, because it violates article 1, § 2, par. 1, of the Constitution of this state, which declares that "in all prosecutions or indictments for libel, the truth may be given in evidence; and the jury in all criminal cases shall be the judges of the law and the facts. The power of the judges to grant new trials in case of conviction is preserved." (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 head-note of Cain v. State, 16G 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, § 0379. 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 iu 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 judge is a mere agent of the law. He has no discretion except as it is given him. The penalty is affixed by law. A crime is a felony or not, according to the penalty fixed by the legislature; and it is not within the province of the courts to help out the legislature. Under our system, that body has exclusive jurisdiction over the subject, and if, by mistake or otherwise, it has failed to provide for the punishment of a crime, it must go unpunished." 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 of punishment to be inflicted upon criminals. Such power is not one which inheres in the judicial department. The Legislature can fix a determinate term of punishment for an infraction of a criminal law; and the judiciary is without authority to exercise any discretion in imposing such penalty. The Legislature can authorize the judiciary to impose an indeterminate sentence, and clothe the judge with discretion in fixing the quantum of punishment within the minimum and maximum limits of punishment prescribed by the act creating the crime. In exercising such power and discretion, the judge acts, not upon any inherent power residing in the judicial department, but in pursuance of power conferred upon him by the Legislature. In

[152 S.E. 79]

refusing to grant such power of imposing indeterminate sentences the Legislature does not deprive the judicial department of any power resting in it under the Constitution. In granting such power and discretion the Legislature does not do so in pursuance of any power inherent in the judicial department, hut in pursuance of power inherent in the legislative department. In view of the fact that the Legislature alone has the power to authorize the judge to impose indeterminate sentences, and in view of the further fact that no such power inheres in the judicial department, we see no valid reason why the Legislature cannot clothe the jury with the right to fix an indeterminate sentence. As we have seen, the imposition of an indeterminate sentence does not rest upon power inherent in the judicial department under the Constitution of this state. This being so, the conference of such power upon the jury does not impair or destroy any power of the judicial department. Whether the bestowal of such power upon the jury is wise or unwise is not a matter for determination by this court. We are only concerned with the question whether the bestowal of such power deprives the judicial department of any power vested in it under the Constitution of this state.

We have been able to find but one case in which this principle has...