King v. State

• Decision Date: 18 February 1932
• Docket Number: 8454.
• Citation: 163 S.E. 168,174 Ga. 432
• Parties: KING v. STATE.
• Court: Georgia Supreme Court

163 S.E. 168

174 Ga. 432

KING v. STATE.

No. 8454.

Supreme Court of Georgia

February 18, 1932

Rehearing Denied March 2, 1932.

Syllabus by the Court.

"Extraordinary motions for new trial" are such as do not ordinarily occur.

Extraordinary motion for new trial will not lie to review grounds of original motion, where judgment denying new trial has been affirmed on account of failure to file bill of exceptions within time.

Constitutional provisions guaranteeing protection, prohibiting involuntary servitude, and guaranteeing trial by jury, held not violated by fact that Supreme Court, after having sustained certain grounds of ordinary motion for new trial, dismissed writ of error for delay (Const. art. 1, § 1, pars. 2, 17; art. 6, § 18, par. 1).

First ten amendments to Federal Constitution are not limitations on powers of states.

"Due process of law" means administration of laws, according to established rules not violative of fundamental principles of private rights, by competent tribunal having jurisdiction and proceeding upon notice and hearing (Const. U.S. Amend 14).

Statutes which furnish accused necessary protection of life, liberty and property furnish "due process of law" (Const. U.S. Amend. 14).

Erroneous rulings by state court cannot be deemed violation of due process (Const. U.S. Amend. 14).

Accused whose motion for new trial is overruled and whose writ of error is dismissed for noncompliance with state laws is not denied due process (Const. U.S. Amend. 14).

Extraordinary motion for new trial for newly discovered evidence is properly refused, if witnesses involved were subp naed and attended court.

Presumption of negligence in failing to procure testimony of witnesses attending court is not rebutted by general statements in affidavit.

Newly discovered evidence of witness who merely corroborates other witnesses in attendance at trial will not warrant granting of extraordinary motion for new trial.

1. The extraordinary motions for new trial contemplated by our statute are such as do not ordinarily occur in the transaction of human affairs, as when a man has been convicted of murder and it afterwards appears that the supposed deceased is still alive, or where one is convicted on the testimony of a witness who is subsequently found guilty of perjury in giving that testimony, or where there has been some providential cause, and cases of like character, such as where there has been improper communication with the jury, or where there is relationship of a juror to the prosecutor within the prohibited degree unknown to the defendant until after his conviction, or where there is newly discovered evidence.

2. Where a defendant is convicted of murder and moves for a new trial, and his motion is overruled by the trial judge, and he excepts to that judgment and brings the same to this court for review, and where this court affirms the judgment denying a new trial, whether by decision on the merits or by dismissal of the writ of error upon the ground that this court is without jurisdiction to review the judgment of the lower court, due to the neglect of the defendant to file his bill of exceptions within the time required by law to give this court jurisdiction, an extraordinary motion for new trial will not lie to review any of the grounds in the original motion for new trial, although some of such grounds be meritorious and would have resulted in the grant of a new trial if the case had been properly brought in time to have conferred jurisdiction upon this court.

3. None of the provisions of the Constitution of this State, upon which the defendant bases his attacks on the legality of his trial, the sentence, and the affirmance of the judgment overruling his motion for new trial, were infringed by the proceedings in this case.

(a) The first ten amendments to the Constitution of the United States refer exclusively to powers exercised by the government of the United States, and are not of themselves limitations upon the powers of the states.

(b) Due process of law means the administration of general laws according to established rules, not violative of the fundamental principles of private rights, by a competent tribunal having jurisdiction of the subject-matter, and proceeding upon notice and hearing.

(c) Where the Legislature of this state has enacted laws for the government of its courts while exercising their respective jurisdictions, which, if followed, will furnish to the parties the necessary protection of life, liberty, and property, it has complied with its duty to furnish due process of law to a defendant charged with a crime.

(d) A state cannot be deemed guilty of violating the due process clause of the Federal Constitution because one of its courts, while acting within its jurisdiction, has made erroneous rulings or decisions.

(e) Where an appropriate remedy for the correction of errors in judicial proceedings is provided by motion for new trial, and the defendant undertakes by such remedy to correct errors committed in his trial, and the motion is overruled, and where he then undertakes to review that judgment by writ of error brought to this court, which is dismissed because he neglected to comply with the statute of this state which provides the method of review, he cannot complain that he has been denied due process of law.

4. An extraordinary motion for new trial on the ground of newly discovered evidence is properly refused, if it appears that the witnesses whose evidence is alleged to have been newly discovered were subp naed by the defendant, were in attendance upon the court, and were not sworn by him. In such a case the failure of the defendant or his counsel to ascertain all evidence favorable to him which the witness would give will be attributed generally to lack of diligence. Such presumption of negligence is not rebutted by general statements in the affidavit of the defendant and his counsel that they could not have discovered such evidence by the exercise of ordinary care; but the affidavit should state the specific facts upon which such conclusion is drawn.

5. An extraordinary motion for new trial on the ground of newly discovered evidence is properly refused if it appears that two of the witnesses whose evidence is alleged to have been newly discovered were subp naed by the defendant, and were in attendance at the several trials, and that another witness would testify to the same facts as such subp naed witnesses. In such circumstances due diligence was not shown in discovering the evidence of the third witness.

6. The other assignments of error on the judgment of the court overruling the extraordinary motion for new trial are without merit.

Error from Superior Court, Butts County; G. Ogden Persons, Judge.

Tom King was convicted of an offense, and he brings error.

Affirmed.

RUSSELL, C.J., dissenting.

W. E. Watkins, H. M. Fletcher, and Joel B. Mallet, all of Jackson, for plaintiff in error.

Frank B. Willingham, Sol. Gen., of Forsyth, Geo. M. Napier, Atty. Gen., T. R. Gress, Asst. Atty. Gen., and C. L. Redman, of Jackson, for the State.

HINES J.

This is the fourth appearance of this case in this court. King v. State, 163 Ga. 313, 136 S.E. 154; Id., 166 Ga. 10, 142 S.E. 160; Id., 169 Ga. 15, 149 S.E. 650. When this case was here upon its first and second appearances, this court reversed the judgments of the trial court refusing the defendant a new trial upon his motions therefor, and new trials were granted to him. On a third appearance of the case in this court, the defendant's writ of error, in which he excepted to the judgment of the trial court overruling his motion for a new trial, was dismissed for want of jurisdiction in this court to pass upon the same. Thereafter the defendant made an extraordinary motion for new trial, which the trial judge refused to entertain. Upon application of the defendant, this court granted a mandamus nisi calling upon the judge to show cause why he should not certify the bill of exceptions presented to him by the defendant, and in which the defendant sought to review the judgment refusing to entertain the extraordinary motion for new trial. In his answer the trial judge set up that he refused to certify the bill of exceptions upon the ground that it was presented to him in vacation and not in term time. Upon the hearing of the application for mandamus this court held that this contention of the judge was not well founded, and made the mandamus absolute. Thereafter the judge certified the bill of exceptions. In this stage of the case this court decided that the only question for decision by this court was whether the trial judge erred in declining to entertain the extraordinary motion for new trial. This court held that the newly discovered evidence would authorize the trial judge to grant a new trial, and that the declination of the trial judge to entertain the extraordinary motion for new trial could not be sustained upon the ground that it was without merit. Thereupon this court made the mandamus absolute and remanded the case, with direction that the trial judge consider and pass upon the extraordinary motion for new trial. King v. State, 172 Ga. 508, 158 S.E. 2.

The extraordinary motion for new trial contains ten grounds. The first of these grounds is based upon newly discovered evidence of R. E. Logue and his wife. In the second, third fourth, and fifth grounds thereof the defendant insists that he was not legally tried and convicted. This contention is based upon the ground that a majority of this court, when it first had under consideration the defendant's writ of error, dealt with in 169 Ga. 15, 149 S.E. 650, decided that certain grounds of his last ordinary motion for new trial were meritorious, and...