Owens v. Maddox

• Court: Georgia Court of Appeals
• Writing for the Court: PER CURIAM
• Citation: Owens v. Maddox, 80 Ga.App. 867, 57 S.E.2d 826 (Ga. App. 1950)
• Decision Date: 17 February 1950
• Docket Number: Nos. 1,Nos. 32799,32804,2,32803,s. 32799,s. 1
• Parties: OWENS v. MADDOX, Sol. Gen., et al. REESE v. MADDOX, Sol. Gen., et al. MADDOX, Sol. Gen. v. JOHNSON, Sheriff, et al

Page 826

57 S.E.2d 826

80 Ga.App. 867

OWENS v. MADDOX, Sol. Gen., et al.

REESE v. MADDOX, Sol. Gen., et al.

MADDOX, Sol. Gen. v. JOHNSON, Sheriff, et al.

Nos. 32799, 32803, 32804.

Court of Appeals of Georgia, Division Nos. 1, 2.

Feb. 17, 1950.

Syllabus by the Court

1. (a) A justice of the peace is not entitled to a fee for the examination of a witness in a criminal case where the only basis for such claim is the administering of the oath in the affidavit to the prosecutor at the time the warrant was issued.

(b) A justice of the peace is not entitled to a fee of $1 for the waiver of a committal trial when there is no such waiver thereof before said officer.

(c) Under the facts of this case the justice of the peace was only entitled to a fee of $2 for issuing a criminal warrant.

2. (a) The clerk of the superior court is entitled to a fee of 50cents for subpoenaing each witness to appear before a grand jury or a petit jury.

(b) The clerk of the superior court is entitled to a fee of $3 for filing and docketing a bill of indictment in addition to his fee of $9 for services in a criminal case.

(c) The clerk of the superior court is entitled to his fee of 75cents (at 20cents per 100 words) for his services in recording a probation sentence.

3. The solicitor general is not entitled to a fee of $5 for each separate offense charged in a bill of indictment, but is only entitled to a fee of $5 for each defendant named in the indictment, upon conviction or a plea of guilty of one or more offenses charged therein.

No. 32799: Wright, Rogers, Magruder & Hoyt, Rome, for plaintiff in error.

W. T. Maddox, Sol. Gen., Rome, Horace T. Clary, Rome, Harris & Harris, Rome, for defendant in error.

No. 32803: Harris & Harris, Rome, for plaintiff in error.

W. T. Maddox, Sol. Gen., Wright, Rogers, Magruder & Hoyt, Lanham, Parker & Clary, all of Rome, for defendant in error. No. 32804: W. T. Maddox, Sol. Gen., Rome, for plaintiff in error.

Lanham, Parker, & Clary, Wright, Rogers, Magruder & Hoyt, Harris & Harris, all of Rome, for defendant in error.

PER CURIAM.

W. T. Maddox, as Solicitor General, filed his petition in Floyd Superior Court for a declaratory judgment, naming D. G. Johnson, Sheriff, Melvin Owens, Clerk of the Superior Court, and George S. Reese, a Justice of the Peace, as defendants, and asking the court to declare the rights of the parties as to costs in a criminal case in which all parties had certain rights as to fees.

The petition alleged that: A county policeman swore out a warrant before the defendant Reese, charging J. T. Brown with the offense of possessing and transporting illegal whiskey. Pursuant to such warrant Brown was arrested and put in Floyd County jail, then released under a bond set by the sheriff without any committal trial or specific waiver thereof. Maddox, the Solicitor General, prepared a bill of indictment charging in three separate counts the offenses of possessing more than a quart of whiskey in a dry county, possessing nontaxpaid whiskey, and transporting whiskey in a dry county, and this indictment was returned as true by the grand jury after hearing evidence from four witnesses subpoenaed by the clerk. The clerk entered and docketed the indictment and issued four subpoenas for witnesses to appear at the trial of the case, but the defendant came in before trial and entered his plea of guilty to all counts in the indictment and was fined $200, including the costs of the case, which he paid, and he was given a probation sentence. Each of said officers prepared his bill of costs in the case, which was approved by the judge of the superior court, who ordered payment out of the solvent funds. The petitioner refused to pay portions of such bills of cost, and filed the petition for a declaratory judgment asking the court to rule on what costs were properly chargeable in said matter. The issues were tried before the judge of the superior court, who rendered a judgment upon the specific questions raised, and all parties to the proceedings, with the exception of the sheriff, entered their exceptions to that judgment.

The questions presented for determination, and the judgment of the trial court thereon, are:

(a) Is a justice of the peace entitled to claim from a solvent fine a fee for the examination of a witness in a criminal case where the only basis for such claim is the administering of the oath to the prosecutor at the time the warrant is issued?

(b) Is a justice of the peace entitled to claim from a solvent fine a fee for the waiver of a committal hearing when there is no specific waiver of such hearing?

The judge of the superior court held that the justice of the peace was not entitled to said fees in this case.

(c & d) Is the clerk of the superior court entitled to a fee of 15cents or 50cents for subpoenaing witnesses before the grand jury and the petit jury?

The order of the trial judge held that he was entitled to only 15cents for each such subpoena.

(e) Is the clerk of the superior court entitled to a fee of $3 for filing and docketing a bill of indictment in addition to his fee of $9 for his services in a criminal case?

The trial judge ruled that the clerk was not entitled to the additional $3 fee.

(f) Is the clerk of the superior court entitled to a fee of 75cents for recording a probation sentence in addition to the fee of $9 for his services in a criminal case?

The trial judge ruled that he was not entitled to the fee of 75cents in addition to his fee of $9 for services in a criminal case.

(g) Is the solicitor general entitled to a fee of $5 for each separate offense charged in a bill of indictment, or only to a fee of $5 for each defendant named in the indictment?

The trial judge held that the solicitor general was not entitled to a fee of $5 for each separate offense charged in the indictment, but was entitled only to a fee of $5 for each defendant named in the indictment.

1. Code, § 24-1601, fixing the fees of justices of the peace, was amended by an act of the General Assembly, Ga.L.1949, pp. 956-959, by striking the entire section and adding in lieu thereof a new § 24-1601 fixing the fees of justices of the peace of this State, which provides, in part, as follows:

'Each criminal warrant issued ................................ 2.00
                Taking examination of person charged with criminal offense ... 2.00
                Examination of each witness in criminal case .................. .50
                Making out commitment ......................................... .75
                Judgment in each criminal case ............................... 1.00
                Waiving committal trial ..................................... 1.00'
                

The defendant in the case was arrested and carried to jail where the sheriff fixed his bond. He was not carried before the justice of the peace. There was no committal trial, no demand for a committal trial, nor was there any waiver of a committal trial. The only act performed by the justice of the peace was the preparation of the warrant and the administering of the oath to the prosecutor in the affidavit upon which the warrant issued. Under the facts of the case here presented, the justice of the peace was not entitled to a fee of 50cents for the examination of a witness in a criminal case, as there was no trial and no witness examined upon a trial; nor was he entitled to a fee of $1 for waiving a committal trial, as there was no such waiver before said official. Under the facts he was entitled only to a fee of $2 for issuing the warrant, and the trial judge properly so ruled.

2. The court erred in adjudging: (a) that the clerk of the superior court was entitled to a fee of only 15cents for the issuance of subpoenas for witnesses to appear before a grand jury or a trial jury in a case where the defendant pleaded guilty and paid the fine imposed; (b) that such clerk was not entitled to a fee of $3 for services in entering and docketing a bill of indictment in a case where the defendant pleaded guilty and paid the fine imposed; and (c) in adjudging that such clerk was not entitled to a fee of 75cents for his services in recording a probation sentence on the minutes of the court in a case where the defendant pleaded guilty and paid the fine imposed.

The Act of 1881, Ga.L., 1880-1, pp 87-89, provided:

*830    'In criminal cases----
                For service in docketing

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