Pruitt v. State

• Decision Date: 16 April 1971
• Docket Number: No. 2,No. 46137,46137,2
• Parties: Murrell Ray PRUITT v. The STATE
• Court: Georgia Court of Appeals

Page 142

182 S.E.2d 142

123 Ga.App. 659

Murrell Ray PRUITT v. The STATE.

No. 46137.

Court of Appeals of Georgia, Division No. 2.

April 16, 1971.

Syllabus by the Court

A superior court judge, while sitting in one county of his judicial circuit, is not authorized to issue a search warrant for execution in another county of his circuit.

Byrd, Groover & Buford, Denmark Groover, Jr., Macon, for appellant.

Jack J. Gautier, Dist. Atty., Whitney T. Evans, Jr., Fred M. Hasty, Richard Joneal Lee, Macon, for appellee.

EVANS, Judge.

In this case the defendant attacked a search warrant and moved to suppress the evidence obtained thereunder because the warrant was issued by a superior court judge in one county of his circuit for execution in another county thereof. The case went to the Supreme Court of Georgia where, on December 3, 1970, a judgment was rendered, one Justice dissenting, reversing the trial court and holding the judge to have been without jurisdiction, and holding that the motion to suppress the evidence obtained through execution of the search warrant should have been sustained.

But this judgment was subsequently withdrawn by the Supreme Court, and the case was transferred to the Court of Appeals as being within the jurisdiction of this court, rather than in the Supreme Court, 227 Ga. 188, 179 S.E.2d 339.

Subsequently, legislation was introduced (H.B. 56), was enacted in the General Assembly at the January term, 1971, and signed into law by the Governor which, in effect, enlarges the jurisdiction of judges of superior courts, and provides, inter alia, that judges of the superior courts 'may sign any document connected with the official duties of his office in any county comprising a part of his circuit, including all writs, orders, judgments and warrants required to be signed by any such judge. Said document may be signed by the judge in any county within his circuit in which he is present at the time said document is signed.'

We are not unmindful that Hill v. Willis, 224 Ga. 263, 265, 161 S.E.2d 281, requires the reviewing court to consider the law as of the date of such review, rather than what the law was on the date of the trial in the lower court. Also see City of Valdosta v. Singleton, 197 Ga. 194, 208, 28 S.E.2d 759, and cases cited therein.

But here there are two good reasons why the enactment of the statute above referred to is ineffectual to change the status of this case. First, the judgment of a court having no jurisdiction of the person or subject matter is a nullity. See Code § 110-709; Hawes v. Bigbie, 120 Ga.App. 294, 170 S.E.2d 302; Undercofler v. Ernhardt, 111 Ga.App. 598, 142 S.E.2d 317; Edwards v. Lampkin, 112 Ga.App. 128, 144 S.E.2d 119, affirmed in 221 Ga. 486, 145 S.E.2d 518.

Here the warrant was a nullity and absolutely void for want of jurisdiction. There is a great difference between a void judgment and a voidable judgment. See Chapman v. Taliaferro, 1 Ga.App. 235, 237, 58 S.E. 128; Prescott v. Bennett, 50 Ga. 266, 271. A voidable judgment is defective but its wounds are not so critical but that proper surgery may patch it up and effect a recovery. But a void judgment is absolutely lifeless, and neither the General Assembly nor the courts can breathe the breath of life into it.

Next, the recent statute of 1971 above referred to makes no provision as to when it shall become effective, and under another general statute, its effectiveness is delayed until July 1, 1971. See Code Ann. § 102-111; (Ga.L.1968, p. 1364; 1969, p. 7).

We adopt and subscribe fully to the judgment originally rendered by the Supreme Court of Georgia and subsequently withdrawn, from which we quote, in pertinent part, as follows: 'We have concluded that only the first of the grounds of * * * (the) * * * motion need be dealt with. In essence, it stated as follows: that the search warrant pursuant to which the evidence in question was obtained from the premises was illegal and void in that, (a) it was issued by Judge Hal Bell in Macon, Bibb County, Georgia, to be executed in Houston County, Georgia, and that this judge was not a 'judicial officer authorized to hold a court of inquiry' within the meaning of Ga.L.1966, pp. 567-568 (Code Ann. § 27-303) when acting in Bibb County, Georgia, with respect to an alleged violation in Houston County, Georgia; and that (b) this judge's action in issuing the warrant in Bibb County to be executed in Houston County was violative of Code § 24-2609, was a mere nullity, and thus the warrant was a mere nullity.

'This motion manifestly raises the question whether a superior court judge, while sitting in one county of his judicial circuit, is authorized to issue a search warrant for execution in another county of that circuit.

'We take judicial notice that the Honorable Hal Bell was then and is now one of the Superior Court Judges of the Macon Judicial Circuit, which embraces Bibb, Houston and two other counties.

'Our Georgia Constitution, Art. I, Sec. I, Par. XVI, declares that 'The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrant shall issue except upon probable cause, supported by oath, or affirmation, particularly describing the place or places, to be searched, and the persons or things to be seized.' (Code § 2-116). The Fourth Amendment to the United States Constitution contains these same provisions, with inconsequential variations.

'This constitutional guaranty does not specify who has the authority or jurisdiction to issue a search warrant. Likewise, there was nothing in our state statutes as to this feature until the enactment of Ga.L.1966, p. 567, et seq. (Code Ann. § 27-301, et seq.), which was approved March 16, 1966.

'This 1966 statute provides that 'any judicial officer authorized to hold a court of inquiry to examine into an arrest of an offender against the penal laws * * *' may issue a search warrant. Ga.L.1966, pp. 567-568 (Code Ann. § 27-303), supra. (Emphasis ours).

'In this connection, Code § 27-401 provides in material part that 'any judge of the superior court or county court, or justice of the peace, or city or town officer, who may be ex-officio justice of the peace, may hold a court of inquiry to examine into an accusation against a person legally arrested and brought before him * * *'

'So, the issue turns upon whether this judge, when he acted here, was a judicial officer authorized to hold a court of inquiry, in contemplation of the foregoing statute, so as to issue the search warrant under attack here.

'We have concluded that he was not, for lack of jurisdiction.

'No statute has been called to our attention, and we have found none, which gives the superior court authority to issue a search warrant in Bibb County for execution in Houston County.

'On the contrary, the statutes which bear at all upon the question strongly indicate lack of jurisdiction to do so.

'While the 1966 Act under consideration does not specify, it does identify by incorporating by reference to Code § 27-401 those persons empowered to hold a court of inquiry for the purpose of issuing a criminal warrant. It is significant, we believe, that in this respect the latter Code section designates 'any judge of the superior court,' rather than 'any superior court judge,' or 'any of the superior courts,' or language of like import. The General Assembly in enacting this 1966 legislation could have specified that judges of other superior courts located throughout this state were authorized to issue such warrants, but it chose not to do so. We cannot agree that the language 'the superior court' of Code § 27-401, supra, lacks significance here because the commitment...