White v. City Of Tifton

• Citation: 1 Ga.App. 669,57 S.E. 1038
• Decision Date: 04 April 1907
• Docket Number: (No. 368.)
• Parties: WHITE v. CITY OF TIFTON.
• Court: Georgia Court of Appeals

57 S.E. 1038

1 Ga.App. 669

WHITE

v.CITY OF TIFTON.

(No. 368.)

Court of Appeals of Georgia.

April 4, 1907.

1. Criminal Law—Writ of Error—Payment of Fine.

A defendant who has paid a fine imposed by a police court, with the alternative of imprisonment, cannot, after paying such fine, prosecute a writ of error to review the judgment, unless the fine was paid under protest and under duress.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2617.]

2. Same—Duress.

Legal imprisonment, actual or threatened, not used for an illegal purpose, is not duress, although in the given case it may be inflicted or threatened under such circumstances as to be shocking to the instincts of humanity.

3. Same—Supersedeas.

The law in relation to obtaining supersedeas in cases of conviction for violation of municipal ordinances is not sufficiently adequate to prevent gross injustice in many cases, and should, therefore, be amended.

(Syllabus by the Court.)

Error from Superior Court, Tift County.

One White was convicted of violating an ordinance of the city of Tifton, and brings error. Dismissed.

Fulwood & Murray, for plaintiff in error.

C. C. Hall, for defendant in error.

POWELL, J. The law as it is written compels us in this case to arrive at a conclusion that shocks our sense of justice; but judges have the power only to declare the law, not to make it or amend it. The plaintiff in error was convicted in the police court of Tifton for the violation of a city regulation in regard to the conducting of his business. He applied for certiorari, and gave the bond prescribed by the act of December 10, 1902 (Laws Ga. 1902, p. 105). On the tenth day after the conviction the judge of the superior court returned the petition for certiorari, refusing his sanction, and thereafter the accused brought the case to this court, assigning error upon the judge's refusal to sanction the certiorari. Upon the call of the case hero the defendant in error moved to dismiss, and supported his motion by an affidavit showing that the judgment of the original trial court had been satisfied by payment of the fine imposed. Following the practice prevailing in the Supreme Court, we granted a rule requiring the plaintiff in error to answer whether the facts alleged in the motion to dismiss were truly stated or not. He answered under oath as follows: "First. That he has paid the fine imposed upon him by the mayor of the city of Tifton, to wit, the sum of $50, and the further sum of $1.25 for costs in the mayor's court. Second. That the said fine and cost was paid by the plaintiff in error under duress of imprisonment; the circumstances of said imprisonment and duress being as follows: Immediately upon his conviction and sentence in the mayor's court, he served notice of his intention to certiorari said cause to the superior court of Tift county. The petition was duly prepared and forwarded to Hon. Robert G. Mitchell, judge of said court, and the necessary bond filed. Said petition for certiorari, for some cause unknown to deponent, was not acted upon and returned by said judge of the superior court until the 10 days had expired, and was then returned with the sanction refused. That said petition was returned on Sunday morning, and that the first notice deponent had of the refusal of the writ was when he was taken into custody by the marshal of said city on Monday morning following and notified that he must pay the fine or enter upon the alternative service of 30 days on the streets of the city at once. Deponent gave notice then and there of his intention to take said cause by writ of error to the Court of Appeals, and, notwithstanding the fact that he would be put in the guardhouse and and then and there offered to enter into a new recognizance to appear and abide the final judgment of the court, deponent was held in custody and notified by the marshal that he had already filed his certiorari bond, be compelled to go to work on the streets unless he then and there paid the fine and cost. Defendant shows that it is 56 miles from Tifton to Thomasville, the residence of the judge of the superior court of Tift county, and would have required 48 hours to prepare his bill of exceptions and have same certified and secure a further supersedeas That his wife had been confined the day before, and that his little baby was then having convulsions and his wife in a very critical condition, and that deponent could not under such circumstances leave his home and remain in confinement pending the application for a further supersedeas. That his baby died in a very few days afterwards, and was during all the time in such conditionas required deponent's presence continuously. That after being taken into custody the mayor ordered the marshal not to allow deponent to even go to his counsel's office for consultation, and...