Loomis v. State
| Decision Date | 19 March 1948 |
| Docket Number | 16092. |
| Citation | 47 S.E.2d 58,203 Ga. 394 |
| Parties | LOOMIS v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1 2. Under the provisions of the Constitution defining jurisdiction of the Supreme Court and the Court of Appeals the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general way, of unquestioned and unambiguous provisions of the Constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty.
3. A litigant who knows that a statute is directly involved and forms the basis of the litigation, and which he must therefore necessarily know would govern the court in its instruction to the jury, cannot wait until after the trial has ended and then for the first time bring into question its constitutionality by a motion for new trial complaining of the judge's charge. The rule would be different if the litigant could not know or could not reasonably anticipate that the substance of the statute would be given in charge to the jury.
4. An exception to a portion of the judge's charge to the jury, on the ground that it constitutes such a construction of a designated statute 'as renders the same unconstitutional,' does not, without more, amount to an attack upon the statute itself as being unconstitutional, so as to bring the case within the jurisdiction of the Supreme Court.
(a) The present case does not present any constitutional or other question such as would fix jurisdiction in this court, and it is therefore transferred to the Court of Appeals.
An indictment returned by a grand jury of Fulton County and containing five counts charged Homer L. Loomis Jr., and Emory Burke with violations of the Code, § 26-4902, under which 'Acting as peace officer without authority' is made a misdemeanor; the terms of this section being as follows: 'Any person who shall, without authority, exercise or attempt to exercise the functions of, or hold himself out to anyone as, a deputy sheriff, marshal, policeman, constable, or other peace officer or detective shall be guilty of a misdemeanor: Provided, that nothing in this Chapter shall be construed to interfere with the police powers granted to conductors of passenger trains, nor shall this and the preceding section apply in times of riot or unusual disturbance, or in other instances provided for by law.' Loomis demurred to the indictment, his demurrer was overruled, and he excepted pendente lite. He also filed what he designated a 'plea of double jeopardy,' which the judge dismissed on an oral motion and demurrer of the State, and to this ruling Loomis again excepted pendente lite. On the trial, the jury returned a verdict finding Loomis guilty on three of the five counts, to wit, Counts 2, 4, and 5, and not guilty on Counts 1 and 3. Sentences were imposed in accordance with the findings on Counts 2, 4, and 5. His motion for a new trial, based on the usual general grounds, and numerous special grounds added by amendment, was overruled, and he excepted, assigning error on his exceptions pendente lite, as mentioned above, and on the refusal of a new trial.
In the bill of exceptions, which was returned to this court, it is stated: 'The Supreme Court, and not the Court of Appeals, has jurisdiction hereof because questions are raised herein under the Georgia and United States Constitutions and as to the constitutionality of Georgia statutes (Grounds of amended motion, 1, 4, 13, 15, 16a, 16b, 16d, 19, 31).' The following statement will indicate the general nature of these grounds, although they are mentioned here in a somewhat different order from the enumeration in the bill of exceptions.
Special ground 1 of the motion for new trial assigned error on the admission of certain testimony as to the defendant's belief in the Bible, over stated objections of the defendant.
Special ground 13 assigned as error the oath administered to the jurors trying the defendant, whereby they swore to be guided by the evidence, instead of an oath whereby they would have been sworn to be guided by the evidence and the movant's statement.
Special ground 15 assigned error on the propounding of the first of the three voir dire questions--'Have you from having seen the crime committed or having heard any of the testimony delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?' The assignment of error was that the phrase, 'alleged crime,' should have been used instead of the word 'crime.'
Special ground 16b assigned error on the judge's charge on the subject of conspiracy.
Special ground 16d assigned error, 'because the court erred in enforcing seating arrangements for counsel at counsel table, that constituted an unfair advantage for State's counsel and an unfair disadvantage for movant and his counsel and a denial of due process for movant in violation of his said constitutional right of due process.'
Special ground 31 assigned error on the court's failure to grant a mistrial for allegedly improper remarks made by counsel for the State.
In each of the above six grounds, movant alleged the error therein complained of violated stated provisions of the State and Federal constitutions; the only constitutional provisions referred to in any of these grounds being those relating to due process, freedom of conscience, and religious opinions. See Const.U.S. Amends. 1, 14, Code, §§ 1-801, 1-815; Const.Ga. art. 1, § 1, pars. 3, 12, 13. Code (Ann.Supp.) §§ 2-103, 2-112, 2-113.
Special ground 4 complained because the judge, upon his own initiative, denied to movant his constitutional right actively to participate with his counsel in the conduct of his own defense by himself conducting the cross-examination of witnesses against him for the State, and particularly the witness, H. C. Newton, a detective of the City of Atlanta; the ruling of the court being that in order to avail himself of such right of cross- examination the movant would have first to dismiss his then counsel definitely from the case and forfeit any and all right to reinstall him as such counsel at any later stage of the case, although he made timely announcement of his intention to cross-examine the said witness and of his request and desire to do so immediately on the conclusion of the said witness' direct examination by counsel for the State, before any cross-examination of said witness had been undertaken and while said witness remained upon the stand for the purpose of cross-examination. The movant's request and attempt to exercise his said asserted right to cross-examine the said witness and other witnesses for the State, as supported and urged by himself and his counsel, who consented thereto, and the court's said ruling thereon, were as follows:
The attorney specifically invoked the provision of the Constitution, that 'No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both.' See Const. art. 1, § 1, par. 4, Code (Ann.Supp.), § 2-104.
This ground of the motion then sets forth a lengthy colloquy, in which the judge, the defendant, and the defendant's attorney, all participated, parts of the colloquy being as follows:
The Court:
The Defendant: 'I was the only one present when most of the things that have been related to the jury and the court for the last couple of days occurred, and I am the only one able to know when the truth is being told and when the truth is not being told.'
The Defendant:
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