Loomis v. Edwards
| Decision Date | 12 October 1949 |
| Docket Number | 32695. |
| Citation | 56 S.E.2d 183,80 Ga.App. 396 |
| Parties | LOOMIS v. EDWARDS, Judge. |
| Court | Georgia Court of Appeals |
Rehearing Denied Nov. 8, 1949.
Syllabus by the Court.
An extraordinary motion for new trial is not favored. It stands upon a different footing from an original motion for a new trial. To a judgment overruling the latter where a bill of exceptions is presented to the trial judge, he can do only one of two things: Certify as presented, or refer it to the movant for corrections where it does not speak the truth. In the former (an extraordinary motion for a new trial), the trial judge is vested with a broad discretion. While the extraordinary motion is a new case, the whole record including the extraordinary motion, may be looked into to determine whether the extraordinary motion is meritorious. If from such an examination of the record the trial judge as a matter of law determines that the extraordinary motion is without merit, he may decline to entertain it and is not compelled, as a matter of law, to issue a rule nisi thereon. If he so refuses, and a bill of exceptions to the judgment of the court declining to entertain such extraordinary motion is presented to the trial judge, he may refuse to certify such bill of exceptions. In such event if the petition for mandamus nisi to require the trial judge to certify to such bill of exceptions is presented to this court, this court will look to the whole record to see whether or not the trial judge erroneously refused to entertain the extraordinary motion and to certify the bill of exceptions to the judgment refusing to entertain it. In such event if this court should determine that the extraordinary motion is without merit, as the trial court so determined, it will not sanction or entertain the petition for writ of mandamus nisi, but will refuse to entertain it and will dismiss the petition for writ of mandamus nisi which seeks to have this court require that the trial judge certify such bill of exceptions pertaining to the extraordinary motion.
By special presentment of the grand jury of Fulton County the applicant, Homer L. Loomis, Jr., whom we shall call the applicant, and Emory C. Burke, were together with J. R. Childers, charged with the offense of riot. The material portion of the indictment involved here is: '* * * for that said accused, in the County of Fulton and State of Georgia, on the 28th day of October, 1946, with force and arms, did jointly with J. R. Childers and other persons whose names are to the Grand Jurors unknown, make an assault, strike, and beat said person, and attempt to commit a violent injury upon the said Clifford Hines, and did assault, strike, and beat said person, and attempt to commit a violent injury upon the said Clifford Hines, accompanying said assault with violent and tumultuous conduct * * *' When the case was called for trial there was a severance demanded by the defendants other than the applicant. On the trial of the applicant the jury returned a verdict of guilty, and sentence was duly imposed on him. He filed a motion for a new trial on the general grounds. Thereafter he added numerous special grounds. The trial court overruled the amended motion for a new trial. On the judgment overruling the motion, the applicant by a bill of exceptions appealed his case to this court for review. This court affirmed the judgment of conviction. Loomis v. State, 78 Ga.App. 336, 51 S.E.2d 33. The applicant filed a petition for certiorari to the Supreme Court. The petition was denied. Thereafter, the said applicant presented an extraordinary, out-of-term, motion for a new trial. The contention therein made is that the grand jury knew the names of co-rioters Clarence H. Kight and Douglas Watson before and at the time the indictment was returned; and that the applicant had obtained alleged newly discovered evidence of that fact; and that such alleged newly discovered evidence entitled him to a new trial on said extraordinary motion. The Hon. Clark Edwards, Jr., a judge of the superior court of another judicial circuit was designated and did conduct the original trial in the Superior Court of Fulton County. He heard all of the evidence, entertained and overruled the original amended motion for a new trial and certified the original bill of exceptions to this court. When the extraordinary motion above referred to was filed in Fulton superior court, the Superior Court of Fulton County referred it to Judge Edwards, Jr., to pass upon and determine. When the extraordinary motion was so referred, Judge Edwards issued a rule nisi thereon for the State to show cause why the rule nisi should not be granted. On the day set for this hearing Judge Edwards vacated and revoked the order granting the rule nisi, after argument from counsel for both the applicant and the State. The presiding judge then passed an order and judgment refusing to entertain the extraordinary motion. The effect of the judgment of the court in refusing to entertain the extraordinary motion was in effect that from the whole record of the case the extraordinary motion showed as a matter of law that the motion was not meritorious. To this ruling the applicent prepared and tendered a bill of exceptions assigning error on the court's refusal to entertain the extraordinary motion. Judge Edwards declined and refused to sign this bill of exceptions. Then it was that the applicant by petition applied for a mandamus nisi directed to this court to require Judge Edwards to certify the bill of exceptions which applicant had prepared and presented to Judge Edwards with a view of having the judgment of Judge Edwards reviewed by this court. Hence the case is here.
Homer L. Loomis, New York City, for plaintiff in error.
Paul Webb, Sol. Gen., Atlanta, Wm. Hall, Atlanta, for defendant in error.
1. (a) Extraordinary motions for a new trial are not favored. Coggeshall et al. v. Park, 162 Ga. 78, 132 S.E. 632. This principle is elementary. There are decisions too numerous to cite to the same effect. We cite this decision because it involves other questions pertinent here.
(b) It is contended by the applicant that since the law provides that a judge in the court below exercise discretion in passing upon an extraordinary motion for a new trial, the trial judge in the instant case committed reversible error in refusing to entertain the extraordinary motion. This contention is not sound as a matter of law. If the extraordinary motion is palpably without merit, taking into consideration the extra-ordinary motion together with the whole record of the case, the judge may refuse to entertain the extraordinary motion as a matter of law. In such a case, when the trial judge does so refuse, as in the instant case, and the applicant in the extraordinary motion presents such trial judge with a bill of exceptions to the ruling refusing to entertain such extraordinary motion, which bill of exceptions the trial judge refuses to certify and where, as here, a petition for the writ of mandamus nisi under the Code, § 6-910 is presented to this court to compel the judge to certify to such bill of exceptions, then this court will look to the merits of the extraordinary motion and the whole record in the case to determine whether this court will issue such mandamus nisi requiring the trial judge to show cause why he should not certify such bill of exceptions. If this court should determine from the record in the extraordinary motion and the orginal case that the extraordinary motion is without merit, and the trial judge was correct in so determining, then this court will refuse to grant the petition of the applicant for mandamus nisi for the trial judge to show cause why he should not certify the bill of exceptions. This court will not as a matter of law be compelled to first grant the mandamus nisi. In Harris v. Roan, 119 Ga. 379(5 and 6), 46 S.E. 433, 434, the court said:
See also Landers v. Cobb, Judge, 150 Ga. 80, 102 S.E. 428. See also Rawlins v. Mitchell, 127 Ga. 24, 28, 55 S.E. 958. There are other decisions to the same effect. We deem it unnecessary to cite them. In view of what we have said, see also Bivins v. McDonald, 50 Ga.App. 299, 177 S.E. 829. While that case deals with mandamus absolute, it throws much light on other questions discussed above. See also Henderson v. Maddox, 40 Ga.App. 91, 149 S.E. 59.
(c) The gist of the extraordinary motion is that the names of Clarence H. Kight and Douglas Watson were known to the grand jury at the time the indictment was returned, but nevertheless the indictment alleged that the last two were unknown and for this reason the applicant was illegally convicted, for if the names of the co-rioters were known to the grand jury, the grand jury was as a matter of law required to insert their names in the indictment as co-rioters with the three indicted. In Leverkuhn v United States, 5 Cir., 297 F. 590(1), that court said: 'Where an indictment for conspiracy * * * sufficiently informed accused of the charge, it was not reversible error to reject evidence that the names of persons with whom accused conspired,...
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