Joseph v. State

• Citation: 96 S.E. 229,148 Ga. 166
• Decision Date: 13 June 1918
• Docket Number: 913.
• Parties: JOSEPH v. STATE.
• Court: Supreme Court of Georgia

96 S.E. 229

148 Ga. 166

JOSEPH v. STATE.

No. 913.

Supreme Court of Georgia

June 13, 1918

Syllabus by the Court.

That portion of section 1 of the act of 1916 (Acts 1916, p. 56) which provides that the Court of Appeals of this state "shall sit in divisions of three judges each, but two judges shall constitute a quorum of a division, * * * and all criminal cases shall be assigned to one division. Each division shall hear and determine, independently of the other, the cases assigned to it"--is not repugnant to the due process clause of the Constitution of this state or that of the United States.

Under the act in question, a decision by a division of three judges, or by a majority of them, is a decision by the Court of Appeals of this state.

Error from City Court of Brunswick; D. W. Krauss, Judge.

Peter Joseph was convicted in the city court of Brunswick, his motion for a new trial was denied, and the Court of Appeals (94 S.E. 626) affirmed the city court's judgment denying the motion for a new trial, which judgment on remittitur was made the judgment of the city court, and he brings error. Affirmed.

Frank H. Harris, of Brunswick, for plaintiff in error.

F. M Scarlett, Jr., Sol., of Brunswick, for the State.

GEORGE J. (after stating the facts as above).

It is the contention of the plaintiff in error that the Court of Appeals consists of a bench of six judges, and that the concurrence of the full bench, or at least of a majority of the judges, is necessary for the making of a decision by that court. It is further insisted that the court itself has no right, under the Constitution of Georgia, to divide itself into divisions of three judges each, and that a decision by three judges, or a majority of three judges, is not a decision of the Court of Appeals. An attack is made upon the constitutionality of the act of 1916 (Acts 1916, p. 56) which in express terms provides for the organization of the Court of Appeals into two divisions of three judges each, and that "all criminal cases shall be assigned to one division. Each division shall hear and determine independently of the other, the cases assigned to it." The act in question further provides that "two judges shall constitute a quorum of a division." Article 6, § 2, par. 8, of the Constitution of this state (Civil Code, § 6505), provides "The Supreme Court shall hereafter consist of a Chief Justice and five Associate Justices. The court shall have power to hear and determine cases when sitting either in a body or in two divisions of three judges each, under such regulations as may be prescribed by the General Assembly. A majority of either division shall constitute a quorum for that division."

Section 6112 of the Civil Code provides for the organization of the Supreme Court into two divisions and section 6113 thereof, with reference to the powers of the Supreme Court, provides:

"Either division may render a final judgment in any case argued before it, and such judgment shall have the same force and effect as if rendered by the court as a whole: Provided, nevertheless, that the court shall, as far as practicable, endeavor to so conduct its proceedings as to have the concurrence of all the justices in all judgments rendered, except in cases where there is an express dissent upon the part of one or more of them."

The amendment to the Constitution creating the Court of Appeals (Acts 1906, p. 24), codified as section 6506 of the Civil Code, provides in part as follows:

"The Court of Appeals shall, until otherwise provided by law, consist of three judges, of whom two shall constitute a quorum. * * * The laws relating to the Supreme Court, as to the

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