Mattox v. State

• Decision Date: 31 March 1902
• Citation: Mattox v. State, 115 Ga. 212, 41 S.E. 709 (Ga. 1902)
• Parties: MATTOX v. STATE.
• Court: Georgia Supreme Court

41 S.E. 709

115 Ga. 212

MATTOX v. STATE.

Supreme Court of Georgia

March 31, 1902

Syllabus by the Court.

1. There is no constitutional limitation upon the power of the general assembly to provide the manner in which a jury shall be obtained; and, consequently, an act creating a city court is not unconstitutional because it provides for the drawing and summoning of a panel of 16 jurors for the trial of cases from which a jury of 12 should be obtained.

2. The constitution of this state guaranties to litigants in all cases tried in a city court the right to demand a trial before a jury of 12 persons, and a provision in an act creating a city court, taking away this right in suits where the principal sum involved is $50 or less, is unconstitutional and void. Such a provision is not, however such an important part of the scheme of the act creating a city court as that its invalidity will have the effect of rendering void the entire act.

3. The general assembly has a discretion, uncontrolled by any constitutional limitation, to decide when a given locality has a sufficient number of inhabitants to entitle it to be incorporated as a city.

4. Where a town was reincorporated as a city by an act which repealed all conflicting laws, the territory embraced within the town thereafter became a city, notwithstanding the fact that the act granting a charter to the town had not been expressly repealed. The effect of the act incorporating the city was to repeal by necessary implication the charter of the town.

5. Where the title of an act was to establish "the city court of Valdosta, in and for the county of Lowndes," a provision in the body of the act that the city court of Valdosta be "established in the city of Valdosta, and created with civil and criminal jurisdiction over the whole county of Lowndes," did not, within the meaning of the constitution, contain any matter different from what was expressed in the title.

6. Where a person arraigned under an indictment in the city court of Valdosta waived trial by jury, and was tried by the judge without a jury, his judgment convicting the accused is reviewable in the supreme court on writ of error, without regard to whether the trial was had at a regular, or an adjourned, or a special term of the court; the judge of the city court having authority under the act creating the court to hold an adjourned term or call a special term for the trial of criminal cases.

7. Where, in an indictment for larceny, the ownership of the goods alleged to have been stolen is laid in a name which imports a corporation, the presumption is that it is the name of a corporation, and it is not necessary, even as against a special demurrer, to allege the fact of incorporation.

8. Where an indictment charges the theft of a bottle of beer and the evidence shows that the bottle charged to have been stolen was taken from a barrel containing bottled beer, it is not error to permit counsel for the state to ask the prosecutor, "How many barrels have you missed?"

9. Under an indictment for simple larceny the accused can be convicted upon evidence showing that the property described in the indictment was stolen from a house.

Error from city court of Valdosta; W. H. Griffin, Judge.

Lawson Mattox was convicted of larceny, and brings error. Affirmed.

Crawford Walker and Jos. M. Johnson, for plaintiff in error.

S. M. Varnadoe, O. M. Smith, and C. L. Smith, for the State.

COBB J.

The accused was arraigned in the city court of Valdosta under an indictment charging him with the offense of simple larceny. A trial by jury having been waived, the case was submitted to the judge, who rendered a judgment convicting the accused of the offense charged in the indictment. The case is here upon a bill of exceptions assigning error upon the judgment of conviction as well as upon a judgment overruling a demurrer to the indictment.

1. Counsel for the defendant in error made a motion to dismiss the writ of error, and the grounds upon which this motion was based will be first dealt with. It is contended that the city court of Valdosta is not a like court to the city courts of Atlanta and Savannah, for the reason that the act creating the city court of Valdosta provides for the drawing and summoning of 16 jurors only, and from this panel a jury of 12 is provided in civil cases by allowing each party two strikes, and in criminal cases by allowing the accused three strikes and the state one. The act in terms provides for a jury of 12, and that is the only jury for which provision is made by the act. See Acts 1901, p. 183,§ 29. The constitution requires that cases in city courts shall be tried by a jury of not less than 12 when a trial by jury is demanded by either party. Civ. Code, § 5876. There is nothing in the constitution which prescribes the manner in which this jury shall be obtained, but this matter is left for determination by the general assembly. While under existing laws for the trial of civil cases in superior courts a jury is procured by each party striking 6 jurors from a panel of 24, and in misdemeanor cases by the state striking 5 and the accused 7 from a like panel, there is nothing in the constitution or laws of this state which requires that this plan shall be adopted in city courts. All that is required by the constitution is that a jury of 12 shall be provided, and when the general assembly makes provision for a jury of 12 impartial persons to try cases pending in a city court the requirement of the constitution is met, and the manner in which the jury is to be procured is a matter left entirely to the discretion of the general assembly. The case of Conyers v. Graham, 81 Ga. 615, 8 S.E. 521 (4), is directly in point, and controlling on this question. There is nothing on this subject in the act creating the city court of Valdosta which prevents that court from being a city court within the meaning of that term as used in the constitution.

2. It is further contended that the act creating the city court of Valdosta is unconstitutional, for the reason that section 14 of the act provides that in cases "where the principal sum involved is not over fifty dollars a trial by jury shall not be had." The constitution declares: "The right of trial by jury, except where it is otherwise provided in this constitution, shall remain inviolate, but the general assembly may prescribe any number, not less than five, to constitute a trial or traverse jury in courts other than the superior and city courts." Civ. Code, § 5876. Under this provision of the constitution the general assembly has no power to deprive a person of the right of trial by jury in any civil case founded upon a cause of action which is purely legal in its nature. The court created by the act under consideration has civil jurisdiction only in cases of the character just indicated, and in all such cases either party has a right to demand a trial by jury. Consequently, so much of the act as attempts to take away this right in cases where the principal sum involved does not exceed $50 is unconstitutional. This being true, the question to be determined is whether the trial of such cases in some other manner than by a jury is such a part of the legislative scheme outlined in the act creating the court as that the inability to carry into effect this part of the act would entirely destroy the scheme, and thus render the whole act unconstitutional. The act provides for the establishment of a court which shall have jurisdiction concurrent with the superior courts in all civil cases where exclusive jurisdiction is not vested in those courts and in criminal cases below the grade of felony, and provides that the judge may grant new trials, and that a writ of error shall lie direct from that court to the supreme court. The act provides for jury trials in all cases save the class above mentioned. It provides a method for drawing and impaneling juries. The method of trial in civil cases involving $50 or less seems to be a matter of minor importance in the scheme of the act, and there is nothing at all in the act to show that the general assembly intended the provision that there should be no jury trial in such cases to be an essential part of the scheme. The rule to be followed in determining whether an act which is unconstitutional in part can be sustained as to the remainder is thus stated by the present chief justice in Elliott v. State, 91 Ga. 696, 17 S.E. 1005 "When a statute cannot be sustained as a whole, the courts will uphold it in part when it is reasonably certain that to do so will correspond with the main purpose which the legislature sought to accomplish by its enactment, if, after the objectionable part is stricken, enough remains to accomplish that purpose. But if the objectionable part is so connected with the general scope of the statute that, should it be stricken out, effect cannot be given to the legislative intent, the rest of the statute must fall with it." See, also, in this connection, Irvin v. Gregory, 86 Ga. 615, 13 S.E. 120; Hancock v. State, 114 Ga. 439, 40 S.E. 317. Applying this rule to the facts of the present case, it cannot be said that the manner in which the trivial cases referred to above are to be tried was in any sense so connected with the general scope of the act that the court thereby created would not have been brought into existence by the legislature without the provision which denies a jury trial in those cases involving trifling amounts. The legislative will and purpose manifested by the act taken as a whole is to provide a local court for the relief of the superior court in misdemeanor cases and civil cases where, under the constitution, the superior court has not exclusive jurisdiction. The deprivation of trial by jury in case...