Spann v. Clark

Decision Date31 July 1872
Citation47 Ga. 369
PartiesE. F. SPANN, relator. v. J. M. CLARK, Judge of the Superior Courts of the Southwestern Circuit, respondent.
CourtGeorgia 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:

"If there was no error in refusing the motion for a new trial, there was no error in refusing the supersedeas. If the *motion for a new trial had been made in term and refused, and the bill of exceptions tendered within thirty days, the duty of granting the supersedeas would have been imperative. It will be observed that the different sections of the Code, sections 4191-4203, inclusive, all refer to regular proceedings, that is, to a bill of exceptions 'to any sentence, judgment or decision or decree of such Court, or of the Judge thereof, in any matter heard at Chambers, ' tendered within thirty days from the adjournment of the Court, or the date of the decision at Chambers, and not to the bills of exception filed irregularly and predicated upon irregular motions for new trials. The matters that can be heard at Chambers are specially defined in section 237 of the Code, and to hear and determine motions for new trials is not one of the 'matters' therein specified. By section 239 the Judge is prohibited from exercising any power out of term, except the authority is expressly granted. The 'decision at Chambers' has a technical meaning, and must be considered to refer to such matters as the Judge in vacation has power to pass upon and determine—such matters as are specially enumerated in section 237 and other sections and laws bearing upon that question. When such a decision is made at Chambers, or a judgment, sentence or decree rendered in term, then the duty of the Judge in signing and certifying bills of exception presented within thirty days, and granting a supersedeas, 'is imperative. If the bill of exceptions is true, and contains all the facts, the Judge "shall sign and certify the same as such: ' Code, section 4193, and 'if the offense is not bailable the Judge shall order a supersedeas at the time of filing the bill of exceptions.' * * *

It occurs to me that it is only mandatory upon the Judge to sign and certify the bill of exceptions, or to grant the supersedeas when the proceedings are all regular, and within the time prescribed by law, and such proceedings too as are contemplated by the Code. Such would seem to be a reasonable construction without violence to any section. In all cases like this, which are irregular and out oftime, both the certifying and signing the bill of exceptions and granting the supersedeas "should be left, where in my judgment they are now left, to the sound discretion of the Judge. If he exercises that discretion wisely, the majesty of the law is vindicated; if he abuse it, the remedy is ample and complete. Any other rule would inflict manifest injury upon society by the protection it would give to criminals. *****

It as been suggested to me by an eminent counselor of this State, that there is no provision in the law for the consideration of a molion for a new trial by a Judge in vacation, unless the motion is made in term and an order granted to hear it in vacation. This suggestion is worthy of consideration. Part three, title eight, chapter one, of the Revised Code, nowhere alludes to new trials granted or heard by the Judge at Chambers, except section 3668, which prescribes for the hearing, determining and returning in vacation, when the motion is made in term. Section 3660 prescribes that new trials shall be granted by the Superior Court3 only. Section 3661 gives power to the Superior Courts of the State to grant new trials. Section 3663 allows the Superior Courts to grant new trials when illegal evidence may be admitted, or legal evidence illegally withheld. Section 3670 directs that in case of a motion for a new trial after the adjournment of the Court some good reason must be shown why the motion was not made during the term, to be judged of by the Court. It would seem from these several sections that the Superior Court and not the Judge, in vacation, is the tribunal to hear and determine motions for new trials. A Judge out of term is not the Superior Court. This view is strengthened when we consider that by section 237 the power and authority of the Judges as Judges are not as Courts are, prescribed especially. It nowhere appears in that section that they have authority to hear and determine motions for new trials, and by section 239 they are prohibited from exercising any power out of term, except the authority is expressly granted. * * * *

It will be my pleasure cheerfully to abide by and perform the judgment of the Supreme Court in the premises, and having *fully answered, the respondent prays for the judgment of the Court in the premises."

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.

McCAY, Judge..

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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9 cases
  • Collier v. State
    • United States
    • Georgia Supreme Court
    • 26 mars 1902
    ...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, ......
  • Marlowe v. Worrill
    • United States
    • Georgia Supreme Court
    • 10 novembre 1936
    ...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., ......
  • Vanderford v. Brand
    • United States
    • Georgia Supreme Court
    • 27 juillet 1906
    ...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......
  • Williams v. Pilcher & Dillon
    • United States
    • Georgia Court of Appeals
    • 9 février 1924
    ... ... 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, ... ...
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