Nichols v. State

Decision Date04 February 1916
Docket Number6927.
Citation87 S.E. 817,17 Ga.App. 593
CourtGeorgia Court of Appeals

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.


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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