White v. George

• Decision Date: 10 March 1943
• Docket Number: 14425.
• Citation: 24 S.E.2d 787,195 Ga. 465
• Parties: WHITE v. GEORGE, Marshal, et al.
• Court: Georgia Supreme Court

24 S.E.2d 787

195 Ga. 465

WHITE v. GEORGE, Marshal, et al.

No. 14425.

Supreme Court of Georgia

March 10, 1943

Syllabus by the Court.

1. 'A discharge under a writ of habeas corpus, after a conviction, can not be granted unless the judgment is absolutely void, as where the convicting court was without jurisdiction, or where the defendant in his trial was denied due process of law, in violation of the constitution. Since the writ can not be used merely as a substitute for a writ of error or other remedial procedure to correct errors of law of which the defendant had opportunity to avail himself, no question as to guilt or innocence or as to any irregularity can be so raised, unless it was such as to render the judgment wholly void.' Aldredge v. Williams, 188 Ga. 607, 4 S.E.2d 469.

2. Where a direct contempt is committed in the presence of the court, the offender is not entitled as a matter of right to a hearing before the court, acting on its own knowledge of the facts, proceeds to impose punishment for the contempt, though the court may in its discretion allow such a hearing; and the refusal to grant such a hearing does not deprive the offender of the due process of law guaranteed by the State and Federal constitutions.

Houston White, an attorney, filed a petition for habeas corpus against J. M. George, marshal of the civil court of Fulton County, and J. M. Mount, sheriff of Fulton County, seeking to obtain his release from the Fulton County jail, where he was being detained under an order of contempt of court. The order adjudging the petitioner to be in contempt of court, dated October 27, 1942, was issued by Hon. Clarence Bell, judge of the civil court of Fulton County, and ordered petitioner to pay a fine of $25 or be confined in jail for five days. It recited that during the trial of a named civil case White, as counsel for the plaintiff, persisted in interrogating a witness with reference to matters which were not in dispute and which the court had previously ruled inadmissible; that when counsel for the defendant further objected to such questioning, White stated that the court was making his rulings on account of personal prejudice toward him; that the court made no reply to White's statement at the time, and White continued to question the witness with reference to the same matters; that finally the court quietly but peremptorily directed White to cease such questioning stating that he was trifling with the court; that White then in a loud and contemptuous manner stated, in substance, that the judge was so prejudiced and antagonistic toward him personally he could never try a case before him without the judge 'jumping' at him unnecessarily; that the court stated that White's remarks were unnecessary and did not represent the feelings of the court; and that White thereafter said: 'I want to tell you that is the way I feel, and you are not called upon to jump at me and holler at me like you do from the bench.' The judge certified in the order that he did not 'holler' at counsel. The order further recited that after a recess of some twenty or twenty-five minutes, during which the judge considered what to do, the court resumed the bench, heard the remainder of the evidence and argument in the civil case, announced his judgment therein, and then stated that he fined Mr. White $25 for contempt of court.

The petition for habeas corpus alleged that the contempt order was void, because (1) the judge was not in a fit physical or mental condition to undertake a judicial duty at the time the alleged contempt occurred, in that the judge was under the influence of alcohol, and extremely irascible; and (2) the judge denied petitioner an opportunity to be heard on the merits of the contempt proceeding. The petitioner attached to his petition a copy of a motion which he had filed in the civil court of Fulton County, asking for a hearing on the merits of the alleged contempt, but on which he alleged he had been unable to obtain a hearing from Judge Bell. The motion alleged that when Judge Bell announced from the bench that he had passed an order holding petitioner in contempt, and that he had delivered this order to the marshal of the court, petitioner immediately asked the court to grant him a hearing to show the court that he was not in contempt of court, but that the judge immediately refused this request and hurriedly left the bench; that the petitioner followed the judge into his private office and asked that he be given sufficient time within which to determine his rights in order that he could contest the order, but the judge stated that he would not give him any time, and that if he did not pay the fine he would have him placed in jail immediately. The motion asserted that the petitioner was justified in making the remarks on which the contempt order was based, because of the manner in which the judge had presided in the trial of the case which he was conducting; that the judge was under the influence of alcohol during the trial of the case; that the judge needlessly interrupted the petitioner in his examination of witnesses, and should at him 'just like a person under the influence of intoxicating beverages would shout;' and that the judge had shown personal animosity to the petitioner ever since the petitioner had supported another candidate in one of the judge's races for re-election. The petition for habeas corpus alleged that the statements made in the motion above referred to were true. In an amendment to his petition for habeas corpus, the petitioner alleged that the contempt order was void, because the refusal to allow him an opportunity to be heard violated the due-process clauses of the State and Federal constitutions, Code, § 2-103, Const.Ga. art. 1, § 1, par. 3, § 1-815, Const.U.S. Amend. 14, as well as the provision of the State constitution that 'No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both.' Code, § 2-104, Const. art. 1, § 1, par. 4.

On the hearing the petitioner testified that he had no idea that the judge contemplated adjudging him to be in contempt of court until the order had been issued; that he immediately asked to be heard in the matter, but the judge refused to hear him, and stated that he had drawn a written order and given it to the marshal of the court for execution; that the judge refused to grant petitioner any time to determine his rights; that when he refused to pay the fine the marshal took him in custody under the order dated October 20; that he was later taken in custody under an order dated October 27, 1942, the order produced by the defendants on the hearing; that he did not know what became of the first order, but he understood Judge Bell had it; that the judge took the first order back and wrote the one dated October 27; and that the judge refused to act on his motion, a copy of which was attached to the petition for habeas corpus. The only evidence introduced by the defendants was the contempt order signed by Judge Bell, dated October 27, 1942. After the hearing the court entered an order denying the relief sought by the petitioner, and remanding him to the custody of the sheriff. The petitioner excepted.

Houston White, of Atlanta, for plaintiff in error.

Ralph H. Pharr, of Atlanta, for defendants in error.

DUCKWORTH Justice.

1. This court is not here concerned with whether or not...