Jones v. Mills, 21114
| Decision Date | 09 February 1961 |
| Docket Number | No. 21114,21114 |
| Citation | 216 Ga. 616,118 S.E.2d 484 |
| Parties | Jim E. JONES v. Carl MILLS, Warden. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. A State office can be created only by the Constitution or laws of this State.
2. A defendant in a criminal case may waive or renounce what the Constitution or law has established in his favor.
Jim E. Jones filed his petition for habeas corpus against Carl Mills, as Warden, alleging: The petitioner is being restrained, as a prisoner, of his liberty. The restraint is under the pretense of a sentence imposed by the Superior Court of Fulton County, entered on a void and fatally defective indictment. The Superior Court of Fulton County had no jurisdiction of the petitioner or the alleged offense; and he was deprived of the constitutional guaranty that no person shall be deprived of life, liberty, or property except by due process of law. The indictment was returned in June, 1959, in six counts, charging a felony in each count, to which indictment the petitioner entered his plea of guilty. Prior to the return of the indictment, the petitioner was never served with a copy of the indictment, was not given an opportunity to appear personally or with counsel before the grand jury, was not afforded reasonable opportunity to obtain his witnesses and appear before the grand jury, was not afforded the opportunity to cross-examine any witnesses, all as required by Code § 89-9908 and Ga.L.1943, pp. 284, 287 (Code, Ann., § 40-1617). At the time of the alleged offenses, he was a State official, and thus entitled as a matter of law to the protection and requirements of Code § 89-9908 and Code (Ann.) § 40-1617. Having been denied his rights and privileges, the petitioner has been denied due process of law. The indictment against him was and is fatally defective, and all proceedings thereafter were null and void, and his imprisonment is illegal and void.
The writ issued, and on the hearing the defendant warden filed his demurrers to the petition, which were sustained, and the exception is to this judgment.
Grigsby H. Wotton, D. R. Jones, Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen., Carl B. Copeland, Eugene L. Tiller, Atlanta, for defendant in error.
The petitioner alleges that, at the time of his indictment, he was a 'State official.' Each of the six counts of the indictment charged the petitioner, Jim E. Jones, with a felony, charging that, while 'Director of the Motor Fuel Tax Unit of the Department of Revenue of the State of Georgia,' he committed the acts and crimes charged in the indictment.
'An individual who has been appointed or elected in a manner prescribed by law, who has a designation or title given him by law, and who exercises functions concerning the public, assigned to him by law, is a public officer.' Bradford v. Justices of Inferior Court, 33 Ga. 332; Polk v. James, 68 Ga. 128; Wiley v. City of Sparta, 154 Ga. 1, 14, 114 S.E. 45, 25 A.L.R. 1342; Bank of Chatsworth v. Hagedorn Construction Co., 156 Ga. 348, 358, 119 S.E. 28.
This court is required to take judicial cognizance of 'all laws and resolutions of the General Assembly.' Code § 38-112. 'This court is bound to take notice of who are the public officers of this state, where the law requires such officers to be commissioned by the governor; * * *' Ponder v. Shumans, 80 Ga. 505(2), 5 S.E. 502; Abrams v. State, 121 Ga. 170, 48 S.E. 965; Powell v. Hansard, 206 Ga. 505, 509, 57 S.E.2d 677.
Under the Constitution and laws of this State, there is no such office, and no such official, as 'Director of the Motor Fuel Tax Unit of the Department of Revenue of the State of Georgia,' and under the applicable rules of law, we take judicial notice that there has been no oath of office administered by the Governor, nor any commission issued by the Governor, to any such officer or official as Director of the Motor Fuel Tax Unit of the Department of Revenue, pursuant to Code §§ 89-201 and 89-202. There being no such office, and no such...
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Geiger v. State
...494, 122 S.E.2d 127. But, just as other constitutional and statutory rights may be waived intelligently by an accused (Jones v. Mills, 216 Ga. 616(2), 118 S.E.2d 484), so too 'The constitutional guarantees of the benefit of counsel to a defendant in the trial of a criminal proceeding both f......
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Johnson v. State, 52647
...82, 166 S.E.2d 365. But just as other constitutional and statutory rights may be waived intelligently by an accused (Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484), so too, we believe the constitutional guarantees of counsel of choice may be waived by action or declaration. See Williams v. Go......
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Humphrey v. State
...For cases illustrative of the coverage of the statutes, see Fancher v. State, 113 Ga.App. 195, 147 S.E.2d 463, and Jones v. Mills,216 Ga. 616, 118 S.E.2d 484. III. Demurrers to the Bribery We have reviewed the appellant's demurrers to the bribery indictment which were overruled by the trial......
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Sweeney v. Balkcom
...office since the invention of per diems and the expense account. "It reads like something left over from Runnymede." 10 Jones v. Mills, 1961, 216 Ga. 616, 118 S.E.2d 484, held that the Director of the Motor Fuel Tax Unit of the Georgia Department of Revenue is not a "State official" within ......