Syllabus
by the Court.
Where a
solicitor general, in his private capacity as attorney at
law, is counsel for the plaintiff in a suit for damages
against a railroad company, and his fee is a contingent or
conditional one, viz., one dependent upon his client's
recovery of damages from the defendant, he is disqualified by
interest from advising with the grand jury as to the finding
of a true bill for perjury against a witness for alleged
false testimony given by the witness in favor of the railroad
company in that damage suit, where that cause, at the time of
the finding of the indictment, is still pending in the
courts.
(a) In
such a case the court should appoint a solicitor general pro
tem., to go before the grand jury and advise with them about
finding the indictment for perjury.
(b)
Where the court does not appoint a solicitor general pro
tem., and where the disqualified solicitor general appears
before the grand jury and advises with them as to the finding
of the indictment for perjury, and where the indictment is
returned by them, a written plea in abatement, setting forth
the above-stated facts, presented by the accused before
pleading to the merits, and where the defendant had no notice
of the pendency of the indictment against him, and no earlier
opportunity of presenting his objections to it, is not
subject to general demurrer, and should be sustained, unless
issue is joined upon it; and in the latter event, if the
issue is determined in favor of the defendant, and is
supported by proof, the plea in abatement should be
sustained, and the indictment quashed.
The
court erred in sustaining the demurrer to the plea in
abatement, and in striking the plea.
Error
from Superior Court, Gordon County; A. W. Fite, Judge.
A. J
Nichols was convicted of perjury, and brings error. Reversed.
Russell
C.J., dissenting.
Starr & Paschal, of Calhoun, Neel & Neel, of Cartersville, and
Maddox, McCamy & Shumate, of Dalton, for plaintiff in error.
Joe M
Lang, Sol. Gen., of Calhoun, for the State.
BROYLES
J.
An
indictment for perjury was returned against A. J. Nichols
and it was alleged therein that the perjured testimony of
Nichols was given by him when he testified as a witness for
the defendant company in a case pending in the superior court
of Gordon county, Ga., wherein H. L. Knight was plaintiff and
the Western & Atlantic Railroad Company was defendant. Before
formally pleading to the indictment the defendant interposed
a special plea in abatement, praying that the indictment be
quashed, for reasons set forth therein. The state demurred to
this plea and moved that it be stricken, the court sustained
the demurrer and struck the plea, and the defendant excepted
pendente lite. So much of the plea in abatement as is
necessary for the determination of this case is as follows:
"The cause of H. L. Knight, as plaintiff, and the
Western & Atlantic Railroad Company, as defendant, wherein it
is alleged in said indictment was delivered the alleged false
and perjured testimony of this defendant set forth in said
indictment, was a suit pending in the superior court of
Gordon county, Georgia, wherein said H. L. Knight, by his
petition therein, claimed that he had received severe
injuries to his person by reason of the negligence of the
said railroad company and its agents or servants, to his
damage in the large sum of $20,000. One of the attorneys at
law for the plaintiff, H. L. Knight, in said cause, was and
still is J. M. Lang, who was and is the same person as Joe M
Lang, the solicitor general of the state of Georgia for the
Cherokee judicial circuit, including said county of Gordon.
This defendant says that the said J. M. Lang was and is, as
attorney at law, representing the said H. L. Knight in said
cause, for and in expectation of what is known as a
contingent fee--that is to say, a fee dependent either
directly or in a large part upon the event of said H. L.
Knight obtaining a verdict in his favor in his said cause
against the Western & Atlantic Railroad Company, and upon the
amount of said verdict, if obtained, in favor of said
Knight--and the said Lang was and is the sole counsel for
said Knight in said cause resident in the said county of
Gordon. This defendant says that in and about the making and
preparation of the indictment against him in the cause first
stated the said J. M. Lang, as such solicitor general, and
acting as such, was the official counselor of the grand jury
of said county of Gordon, by whom said indictment was made,
and was personally concerned and interested in the case made
by said indictment against this defendant, because of his
above-stated interest as attorney at law in the result of
said cause of H. L. Knight against the said Western & Atlantic Railroad, which cause is still pending and
undetermined; and said J. M. Lang, or Joe M. Lang, appeared
before said grand jury and gave advice to said body or the
members thereof in and about the making of said indictment
against this defendant.
And this defendant further says: As illustrating and showing
to the court the nature, character, and extent of the
interest of said Lang in the said cause of H. L. Knight
against the Western & Atlantic Railroad Company, and the
means said Lang wished to use and sought to use to procure a
settlement thereof, and the relation between the same and the
indictment made against this defendant in the instant cause,
this defendant says that on or about the 1st day of December,
1913, the said Lang wrote and mailed a letter to John L.
Edmondson, claim agent of the Western & Atlantic Railroad
Company, of which the following is a true copy:
'Law Office of J. M. Lang. Calhoun, Georgia, December 1,
1913. Mr. John L. Edmondson, Equitable Building, Atlanta,
Ga.--Dear Sir: In re Knight vs. W. & A. R. R. Co. My
understanding has been that there was pending some
negotiations in an effort to settle this case. I am writing
you in regard to the same, and ask that you please advise me
whether the company is going to settle this case and, if so,
about when. I have been over on the Sand Mountain and spent
some time in an effort to ascertain the facts in regard to
testimony of certain witnesses in this case. I have got
considerable evidence which I believe is sufficient to
convince any unbiased person that the testimony
of the witnesses for the defendant who came from Alabama was
and is untrue. In fact, I have secured a sufficient amount of
evidence, in my opinion corroborating the sworn testimony of
Mason, that you offered Hughes $250 conditionally to at least
make some interesting reading. This evidence, of course,
might be used in the case in the Supreme Court, or it might
be used in a proceeding to attach you for contempt. In other
words, I have not fully decided yet just how would be the
best way to use this evidence, and I am writing to ascertain
whether the case will likely be settled or not, and, of
course, if it is settled right away, I do not care to use it
at all. This, of course, is a straight business proposition,
and I am trying to collect the money that the jury says is
due my client by your company. I know he needs this money
very much, and the jury said he was entitled to it, and I
think the company ought to pay it. At least, I am doing all I
can to convince you that it will be to the best interest of
the company to pay it right away. This matter was undertaken
solely by me, and my associates at Rome had nothing to do
with it. In fact, they are both likely to get into politics,
and I assure you that everything referred to in this letter
is chargeable to me, and not to either of them. If you see
fit to reply to this, and if we can get this matter settled,
I will be very glad indeed.
Yours very truly, [Signed] J. M. Lang.'
As further illustrating the feeling, interest, purpose, and
intent of said Joe M. Lang in the institution of this
prosecution, this defendant shows that a few months after the
trial of the case of H. L. Knight v. Western & Atlantic
Railroad Company, in Gordon superior court, which trial
occurred at the August term, 1913, thereof, the said Joe M.
Lang came to the state of Alabama, where this defendant
resided, and obtained an interview with Bob Hughes, as this
defendant is informed and believes, and sought to persuade
him to give an affidavit stating that the testimony which he
had given on the trial of said Knight case was false. And
defendant avers, on information and belief, that Bob Hughes
refused to make such an affidavit; that he further stated to
said Hughes that he desired certain affidavits to help in
making the Western & Atlantic Railroad Company pay the
verdict which had been rendered in said Knight case, and that
it would help him to collect the money for said Knight. This
defendant further states, upon information and belief, that
said Lang, during said visit to Alabama, approached J. W.
Murphy, a brother-in-law of said Hughes, and sought to
procure him to see said Hughes and get him to make an
affidavit stating that J. L. Edmondson had paid him to
deliver false testimony in the above-stated case of H. L.
Knight v. Western & Atlantic Railroad, and stated to said
Murphy that he did not wish to hurt any one with the
affidavit, but that if he could get it he would write said
Edmondson, telling him that he had the affidavit, and that
said Edmondson would then pay the verdict in said Knight
case, and that if said Edmondson did not pay said verdict,
that he (said Lang) would have said Edmondson prosecuted, and
further stating that the solicitor general was named Maddox,
and that he was a railroad lawyer, and might not want to
prosecute Mr. Edmondson, but that if said Maddox would not
prosecute said
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