Rhodes v. Pearce

• Decision Date: 14 February 1940
• Docket Number: 13105
• Citation: Rhodes v. Pearce, 189 Ga. 623, 7 S.E.2d 251 (Ga. 1940)
• Parties: RHODES v. PEARCE, Sheriff.
• Court: Georgia Supreme Court

7 S.E.2d 251

189 Ga. 623

RHODES v. PEARCE, Sheriff.

13105

Supreme Court of Georgia

February 14, 1940

Syllabus by the Court.

1. A judge of the superior court has not power under the Code, § 76-101, to issue a peace warrant for arrest and commitment to jail of a person upon grounds therein stated; but he has such power under the Code, § 76-201. If a judge of the superior court issues a peace warrant in any county of his circuit not on information under oath of a person apprehending injury to his person or family or property by another, and commanding the arrest of such other person, and in the discretion of the arresting officer to be allowed to go on his own recognizance, and to appear before the judge at a stated time and place in the county to be dealt with as provided by law, such warrant is not a compliance with the statute. But if after arrest and release on his own recognizance the person arrested appears before the judge and is afforded a hearing at which evidence under oath is introduced to show danger of such injury to the person family, or property of the person named in the warrant, this will be a substantial compliance with the provisions of the Code, § 76-201, affording the judge jurisdiction to order the giving of a bond to keep the peace, and on failure thereof to be committed to jail.

(a) In such circumstances the judge was clothed by law with jurisdiction to dispose of cases contemplated by the Code § 76-201, and acquired jurisdiction of the defendant's person by his appearance at the hearing that was afforded him. If he was dissatisfied with the decision at such hearing the law afforded him a remedy by certiorari. See in this connection Holder v. Beavers, 141 Ga. 217, 80 S.E. 715; Strickland v. Thompson, 155 Ga. 125, 116 S.E. 593; Davis v. Smith, 7 Ga.App. 192(5), 66 S.E. 401; Cross v. Foote, 17 Ga.App. 802, 88 S.E. 594. Any deficiency in the warrant as a means for bringing him before the judge will be treated as a mere irregularity and insufficient to void the judgment that was rendered.

(b) When, after such judgment, the defendant failed to give bond as required and on that account was put in jail, he was not entitled to discharge on habeas corpus, on the ground that the judgment was void for want of jurisdiction.

(c) The case differs from Ormond v. Ball, 120 Ga. 916, 48 S.E. 383; and Smoot v. State, 160 Ga. 744, 128 S.E. 909, 41 A.L.R. 1533, which were not habeas-corpus cases and the detentions did not arise under the Code, § 76-201, and were not based on judgments after the prisoners had been afforded a hearing. The case also differs from Tollison v. George, 153 Ga. 612(3), 112 S.E. 896, which was in habeas-corpus proceedings where the prisoner was held under a void warrant but not under a judgment rendered after a hearing afforded by the court.

(d) The judgment of the trial court remanding the prisoner to the custody of the officer being correct, it will not be reversed because the judge may have based it on the wrong reason.

2. As decision of the case does not depend on the provision of the Code, § 76-101, it is unnecessary to deal with the question as to the constitutionality of that statute.

At the July term of the superior court of Wilcox County the grand jury returned a true bill of indictment against George Rhodes 'charging him with the offense of illegally pointing a weapon' at another. In their general presentments at that term the grand jury included the following: 'We further recommend that the presiding judge of this court require the defendants, George Rhodes and Sam Rhodes, against whom we have returned true bills, to give peace bonds conditioned as required by law to keep the peace in so far as C. W. Gillespie and G. W. Harrell are concerned, such bonds to be in addition to the regular appearance bonds as required by law.' Shortly thereafter, on August 23, 1939, the judge, having no personal information upon which to act, and no affidavit or information delivered on oath of another, and proceeding on his own motion solely on the above recommendation of the grand jury, issued an order commanding the sheriff to arrest the said George Rhodes and bring him him before the judge on September 5, 1939, to be dealt with as provided by law. The order was executed and at the appointed time and place the respondent was afforded a hearing 'at which evidence was offered and the testimony of various witnesses heard under oath,' and following the hearing and argument of counsel the judge passed another order which in part declared: 'It is further ordered that George Rhodes be and he is hereby required to give bond in the sum of $500 for his good behavior until the next term of the superior court of Wilcox County, Georgia, as against the person of C. W. Gillespie, and also as against the peace, property, or family of said C. W. Gillespie. * * * In default of compliance with this order the sheriff of Wilcox County, Georgia, is directed and authorized to arrest the bodies of said defendants and hold them in the common jail of said county, until compliance by them of this order, or until the further order of the court.' On refusal of George Rhodes to give bond the sheriff arrested him. While in custody of the sheriff and confined in jail, George Rhodes instituted habeas-corpus proceedings against the sheriff, alleging that his detention was illegal, on the ground that in the circumstances enumerated it was unauthorized by law, and that in so far as the Code, § 76-101, applied by the judge purported to authorize the judge, on his own motion and unsupported by oath of an informant, to order arrest of Rhodes for failure to give a peace bond, it was void as violative of article 1, section 1, paragraph 16, of the constitution (Code, § 2-116), which provides in part '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.' The sheriff produced the prisoner and made response to the petition setting forth the cause of detention substantially as stated above. The case was submitted upon the pleadings without introduction of other evidence. Rhodes, being remanded to the custody of the sheriff, excepted.

J. W. Dennard, Cordele, H. B. Sutton, of Abbeville, and McDonald & McDonald, of Fitzgerald, for plaintiff in error.

Allan C. Garden, Sol. Gen., of Fitzgerald, for defendant in error.

ATKINSON Presiding Justice.

1. It is declared in the Code, § 50-116, that no person shall be discharged upon the hearing of a writ of habeas corpus: '1. Where he is imprisoned under lawful process issued from a court of competent jurisdiction, unless in cases where bail is allowed and proper bail is tendered. 2. By reason of any irregularity in the warrant or commitment, where the same substantially conforms to the requirements of this Code; nor for want of bond to prosecute. * * * 6. In any other case where it appears that the detention is authorized by law.' In the Code, § 50-117 it is declared: 'If the party shall be detained upon a criminal charge, and it shall appear to the court that there is probable cause for his detention, he shall not be discharged for any defect in the affidavit, warrant, or commitment, until a reasonable time shall have been given to the prosecutor to remedy the defect by a new proceeding.' In the Code, § 27-401, it is declared: 'Any judge of the superior 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. The time and place of such inquiry shall be determined by him.' The Code, §...