Spann v. Clark
Decision Date | 31 July 1872 |
Citation | 47 Ga. 369 |
Parties | E. F. SPANN, relator. v. J. M. CLARK, Judge of the Superior Courts of the Southwestern Circuit, respondent. |
Court | Georgia Supreme Court |
Application for mandamus. New trial. Motion for in vacation. Criminal law. Supersedeas. Before the Supreme Court. July Term, 1872.
The petition of E. F. Spann, to the Supreme Court, for the writ of mandamus, set forth substantially the following "facts, to-wit: That petitioner was tried for the offense of murder at a special term of the Superior Court of Webster county, and found guilty; that petitioner was sentenced to be hung on the.... day of July, 1872; that the Governor of the State postponed the execution of said sentence by an Executive order, until the 26th of July, 1872, in order to test the sanity of petitioner, it having been represented to him that petitioner had become insane; that a trial upon said issue was had before the Ordinary of Webster county, and the jury found petitioner to be sane; that on July 23d, 1872, petitioner presented to the Honorable James M. Clark, the Judge who presided on the trial of his case at the special term aforesaid, his application for a new trial in the case of the State against petitioner, charged with the offense of murder; that said new trial was refused; that petitioner asked a supersedeas to the judgment under which he was to be executed on the 26th instant, which was refused; that petitioner presented a bill of exceptions to the said Judge on the 24th of July, 1872, which he certified and assigned; that petitioner filed said bill of exceptions in the clerk's office of the Superior Court of Webstercounty, and applied to said Judge for a supersedeas of the judgment, under which petitioner was to be executed, on the 26th instant, which was again refused; petitioner prays that the writ of mandamus may issue, directing said James M. Clark, Judge as aforesaid, to allow petitioner the supersedeas in his case until he can be heard before the Supreme Court on the errors alleged to have been committed.
On July 2Sth, 1872, the Supreme Court passed an order requiring the Honorable James M. Clark, Judge as aforesaid, to show cause on Tuesday, the 6th day of August next, why the mandamus prayed for should not be granted.*
The only material portions of the answer of said Judge, are as follows:
The writ of mandamus was ordered by the Court to issue, and the opinions, as appear below, were delivered.
Hawkins & Guerry; Phil. Cook; W. A. Hawkins, for the relator.
C. F. Crisp, Solicitor General; N. J. Hammond, Attorney General, represented by L. E. Bleckley, for the respondent.
At the first reading of sections 3668 and 3670 of the Code, there arises, almost irresistibly, the impression that it was the intent of the law makers to authorize a motion for new trial, "under extraordinary circumstances, " to be made in vacation. Section 3668, after providing for ordinary cases, and in terms requiring the motion in such cases to be made at the term at which the case was tried, expressly excepts "ex-traordinary cases" from this rule. Section 3670 says: "In case a motion for a new trial is made after the adjournment of the Court, " some good reason must be shown why it was not made "during the term."
As I have said, an ordinary reader would, from the words "after the adjournment of the Court, " and "luring the term, " understand, "during vacation." It is, however, argued that, by the practice at common law, and by our own practice previous to the adoption of the Code, motions for new trial were always made in term time, and that, as these sections of the Code do not expressly say the motion may be made in vacation, and as it is possible to give the language a meaning even so restricted, that it is proper to do so. There is some plausibility in this view of the subject; but it seems to me the language of the Code does not get its full meaning if we only draw from it the right to move for a new trial at some term subsequent to the trial term. The words in 3670 are not thus restricted; the words are, "after the adjournment of the *Court;" it does not add the words, "at which the case was tried." So, too, it says some reason must be given why the motion was not made "during the term;" it does not add, "at which the case was tried." Were these two sections one section, the words "after the adjournment of the Court" and "during the term" might, perhaps, be fairly understood as mere qualifications of the words, "all applications for a new trial must be made during the term at which the case was tried." But they are different sections; they do not even follow each other, and the intervening section treats of a different subject, to-wit: provides what Judge shall decide upon motions for new trial. Nor is there any special propriety in requiring motions for new trial, in extraordinary cases, to be moved for only in term time. There is propriety in requiring the motion, as a general rule, to be made at the term at which the case is tried. At common law, it had to be done before there was any action taken by the Court on the verdict—before judgment, and before the verdict complained of ceased to be the last action in the case. It is, besides, important that the motion shall be made whilst the facts are fresh, so that there shall be no misunderstanding as to the evidence or as to the rulings of the Court. It is...
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Collier v. State
...the subject now contained in sections 5484 and 5487 of the Civil Code. Following the dissenting opinion of Chief Justice Warner in Spann v. Clark, 47 Ga. 369, it was held in Brink-ley v. Buchanan, 55 Ga. 342, that "it is not competent for a judge of the superior court, sitting at chambers, ......
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Marlowe v. Worrill
...with the rulings made above, see Code, §§ 6-812, 6-910, 6-918, 24-4512; Central Railroad Co. v. Miller, 91 Ga. 83, 16 S.E. 256; Spann v. Clark, 47 Ga. 369; Conwell v. McWhorter, 93 Ga. 254, 19 S.E. 50; Echols v. Candler, 108 Ga. 785, 33 S.E. 811; Savannah, etc., Ry. Co. v. Postal Tel. Co., ......
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Vanderford v. Brand
...of a supersedeas to stay the execution of a judgment in a criminal case while it is pending on bill of exceptions to this court (Spann v. Clark, 47 Ga. 369). This is not an exhaustive statement, but is illustrative of the fact that writs of this character are issued as ancillary to the juri......
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Williams v. Pilcher & Dillon
... ... court as exceptions pendente lite there. Bacon v. Capital ... City Bk., 105 Ga. 700 (a) 31 S.E. 588; Clark v ... Dallas Land Co., 141 Ga. 110 (a, b) 80 S.E. 556; ... Bozeman v. Ward-Truitt Co., 141 Ga. 45 (2), 80 S.E ... 320; Carhart v. Mackle, 22 ... 238; Harris v. Roan, 119 Ga. 379 (1, 5, ... 6), 46 S.E. 433. See, also, in this connection, Brinkley ... v. Buchanan, 55 Ga. 342, 343; Spann v. Clark, ... 47 Ga. 369, 377; Perry v. Gunby, 42 Ga. 41, 42; ... Perkins v. State, 126 Ga. 578, 55 S.E. 501; ... Blalock v. Waggoner, 82 Ga. 122, ... ...