Taylor v. Reese

• Decision Date: 17 March 1899
• Parties: TAYLOR. v. REESE, Judge. PERRY. v. SAME.
• Court: Georgia Supreme Court

33 S.E. 917

108 Ga. 379

TAYLOR.

v.REESE, Judge.

PERRY.

v.SAME.

Supreme Court of Georgia.

March 17, 1899.

CRIMINAL LAW—BILL OF EXCEPTIONS—CERTIFICATION—MANDAMUS.

1. If, upon the trial of a criminal case in a court whose judgments are directly reviewable by the supreme court, an error of law be committed, the necessary effect of which is to control the verdict, and thus deprive the accused of a fair and lawful trial, he may, without moving for a new trial, sue out a bill of exceptions, for the purpose of having such error corrected.

2. When the refusal of a judge to certify a bill of exceptions tendered to him in a criminal case, in which no motion for a new trial had been made, is based solely upon the ground that, in hisopinion, he had in the absence of such a motion, no authority to certify the bill of exceptions, this court, without inquiring into the merits of the questions presented by the bill of exceptions, will, by mandamus absolute, command the judge to certify the same. The decisions of this court in Pitts v. Hall, 60 Ga. 389, and Dotterer v. Harden, 13 S. E. 971, 88 Ga. 145. in so far as they hold to the contrary, are, upon a review thereof, overruled.

(Syllabus by the Court)

Applications for mandamus by Will Taylor and Fred Perry against Seaborn Reese, judge. Writs granted.

Horace M. Holden and Alex. W. Stephens, for movants.

LUMPKIN, P. J. Upon an indictment charging Will Taylor and Fred Perry with the murder of Jep Dennard, they were jointly tried and convicted. Without moving for a new trial, each by his counsel sued out a separate bill of exceptions, alleging, among other things, that the judge erred in refusing to give in charge to the jury certain written requests, the object of which was to have the jury instructed upon the law of voluntary and involuntary manslaughter. Each of these bills of exceptions set forth a statement of the evidence introduced at the trial, recited that the judge ruled that it was not proper to charge the jury as requested, and complained that the verdict of guilty was necessarily controlled by this ruling. Each bill of exceptions also alleged that the judge failed entirely to charge concerning the lower grades of homicide. Perry's bill of exceptions contained one assignment of error which was not in that of Taylor, but it is not now essential to state or discuss the same. The judge declined to certify either of the bills of exceptions, basing his refusal upon the ground that, in the absence of a motion for a new trial, he had no authority so to do. Thereupon each of the accused sued out an application for mandamus, to compel the judge to certify his bill of exceptions.

We have reached the conclusion that it was the duty of the judge to certify these bills of exceptions, notwithstanding there was in neither case a motion for a new trial. The requests to charge were manifestly predicated upon the theory that, under the evidence and the statements made by the accused at the trial, the law of both grades of manslaughter was involved. An examination of these bills of exceptions makes it perfectly clear that in suing them out the accused were seeking to avail themselves of the provisions of the Act of December 20, 1898, "to dispense with a motion for new trial and filing brief of the evidence, and to authorize a direct bill of exceptions, in certain cases, " which declares: "That from and after the passage of this act, in any case now or hereafter brought where the judgment, decree or verdict has necessarily been controlled by one or more rulings, orders, decisions or charges of the court, and the los ing party desires to except to such Judgment, decree or verdict, and to assign error on the ruling, order, decision or charge of the court, it shall not be necessary to make a motion for a new trial, nor file a brief of the evidence, but the party complaining shall be permitted to present a bill of exceptions containing only so much of the evidence or statement of facts as may be necessary to enable the supreme court to clearly understand the ruling, order, decision or charge complained of." Acts 1898, p. 92. This act renders unnecessary the filing of a motion for a new trial when the case depends upon a controlling question of law, and the complaint is that the trial judge committed a vital error with respect to the same. The losing party in any case might very properly concede that, under the evidence and a given charge, the verdict against him, assuming the charge to be correct, was demanded; yet, at the same time, he might with abundant reason insist that, because of error in the charge, the jury were constrained to find as they did. The correction by this court of such an error results in a new trial. The act of 1898 simply gives in explicit terms a right of...