Rawlins v. Mitchell

• Decision Date: 28 November 1906
• Citation: 55 S.E. 958,127 Ga. 24
• Parties: RAWLINS et al. v. MITCHELL, Judge.
• Court: Georgia Supreme Court

55 S.E. 958

127 Ga. 24

RAWLINS et al.

v.MITCHELL, Judge.

Supreme Court of Georgia.

Nov. 28, 1906.

1. Criminal Law—Appeal—Bill of Exceptions—Mandamus—To Judge.

Upon an application for mandamus to compel a judge to certify a bill of exceptions assigning error upon his refusal to entertain a motion to set aside a judgment in a criminal case, presented at a term subsequent to the term at which the judgment was rendered, and after an affirmance by the Supreme Court of a judgment overruling a motion for a new trial, the merits of the motion to set aside the judgment will be inquired into, and a mandamus nisi will not be granted when it appears that the motion to set aside the judgment is wholly without merit.

2. Same—Presence of Accused—Arrest of Judgment.

It has never been the practice in this state to enter on the record the fact that the prisoner and his counsel were present when the verdict was rendered, and when the sentence was pronounced, and from arraignment to sentence, or that the prisoner was asked, before sentence, whether there was any reason why sentence should not be pronounced upon him. The silence of the record as to such facts is therefore no cause for arresting the judgment or setting it aside.

(Syllabus by the Court.)

Application by J. S. Rawlins and others for writ of mandamus to R. K. Mitchell, Judge. Writ denied.

John R. Cooper, for applicants.

COBB, P. J. 1. When a case has been tried in the superior court and a verdict rendered therein, the losing party is entitled to make a motion for a new trial, and to bring to this court for review the decision of the judge overruling the motion, or in some cases, he is authorized to file a direct bill of exceptions, complaining of rulings pendente lite and of the final judgment in the case. When a bill of exceptions in such cases is tendered to the judge, and the averments therein are true, it is the duty of the judge to certify the same, in order that the case may be brought to this court, according to the usual practice governing such matters. When, in such a case, the judge refuses to certify the bill of exceptions, and an application for mandamus is made to this court to compel him to certify the same, the only question that will be determined on such application is whether the bill of exceptions is in due form, and it is shown by the petition for mandamus that the averments therein are true. The merits of the assignments of error therein will not be dealt with. In such cases it is immaterial whether the assignments of error are meritorious. The case must reach the Supreme Court in the ordinary way. Taylor v. Reese, 108 Ga. 379, 33 S. E. 917. While in the case just cited some very broad language is used by Mr. Presiding Justice Lumpkin in the opinion the case that he was then dealing with must be kept in mind, and it was a case where the first bill of exceptions after a trial and verdict was tendered to judge. It is worthy of remark, in passing, that it afterwards developed that the bill of exceptions presented a meritorious ease, the judgment being reversed when the case was finally passed upon by this court See Taylor v. State, 108 Ga. 384, 34 S. E. 2. It may be laid down, then, as a general rule, that it is the duty of the judge of the superior court to certify the first bill of exceptions that is tendered to him after a trial and verdict In the case, and that this court will not, on an application for mandamus to compel such judge to certify the bill of exceptions, inquire into the merits of the case. In Cox v. Hillyer, 65 Ga. 57, Mr. Chief Justice Warner said in the opinion: "The general rule undoubtedly is that when a motion for a new trial in a criminal case has been overruled In the court below and brought to this court on a bill of exceptions, and the judgment of the court below is affirmed, no second bill of exceptions in that case can be allowed or granted." The learned chief justice then remarked that the only exception to this rule is in a case of extraordinary motion for a new trial. This language is too broad; for there may be other exceptions to this general rule, as will be seen from what will hereafter be said. In the case of Malone v. Hopkins, 49 Ga. 221, the rule was laid down, that when a judge refuses to sign a bill of exceptions complaining of a ruling of the judge upon an extraordinary motion for a new trial, the Supreme Court will not by mandamus compel the judge to sign the bill of exceptions when It appeared that the grounds of the motion were without merit. This rule has been steadfastly adhered to. See Harris v. Roan, 119 Ga. 379, 46 S, E. 433 (6), and citations.

It will be seen that there are two classes of cases relating to the duty and authority of this court upon an application for a mandamus to compel the judge to certify to a bill of exceptions. If it is the first bill of exceptions after verdict, the merits of the case will not he considered upon the application for mandamus. If it is upon a ruling relating to an extraordinary motion for a new trial the merits of the motion will be inquired into, and the mandamus will not be granted unless the motion is based upon meritorious grounds. The ease now under consideration is not a case of the first bill of exceptions after verdict; for two of the applicants have already prosecuted two writs of error to this court, and the other applicant has prosecuted one. Neither is this case one relating to an extraordinary motion for a new trial; but it Is to a ruling relating to a motion to set aside a judgment made after the term at which the judgment was rendered, but within three years from the date of the judgment Shall a case of this character be classed withthose which are embraced In the rule In Taylor f, Reese, supra, or shall It be classed with those embraced in the rule laid down In Malone v. Hopkins, supra, and the numerous cases following it? The reason at the foundation of the latter class of cases Is undoubtedly that there must be a termination of a criminal case; and while no party will he deprived of a hearing on the merits of his case, no matter what may be its character, whether an extraordinary motion for a new trial, motion to set aside a judgment, or other proceedings after verdict, the judge of the superior court will not be compelled to certify a bill of exceptions in such proceedings unless it is made to appear to this court that the applicant has been denied some right guarantied to him by law. While he is not given the right to he heard on a bill of exceptions coming to the Supreme Court in the ordinary way, he will be heard on the merits of his motion, whatever it may be, when the application for mandamus is made, and any rights guarantied him under the law of the land will be vouchsafed by this court. But the case will not be prolonged by requiring the bill of exceptions to be certified, when it is apparent from the averments of the petition for mandamus and ...