Wright v. Davis

• Decision Date: 11 November 1937
• Docket Number: 11991.
• Citation: 193 S.E. 757,184 Ga. 846
• Parties: WRIGHT v. DAVIS, Judge.
• Court: Georgia Supreme Court

193 S.E. 757

184 Ga. 846

WRIGHT v. DAVIS, Judge.

No. 11991.

Supreme Court of Georgia

November 11, 1937

Original petition by Will Wright for a writ of mandamus against James C. Davis, Judge, whereon a mandamus nisi and supersedeas were ordered.

Mandamus absolute granted.

Syllabus by the Court.

1. It appearing from the extraordinary motion for a new trial, as amended, that the name of one of the persons who served as a member of the jury which convicted the accused was not in the jury box, that such person obtained his place on the jury by fraudulently impersonating another, that before the trial this 'juror' had twice been convicted of the offense of larceny of an automobile, and had served sentences under such convictions, that neither the movant nor any of his attorneys had knowledge of these facts until after the movant's conviction and the affirmance of the judgment overruling the movant's original motion for a new trial that they could not have discovered the facts earlier by the exercise of reasonable diligence, and that on discovering the same they acted promptly in presenting the extraordinary motion for a new trial, together with the amendment thereto and the motion as amended being otherwise in proper form, the facts alleged therein, as stated above, were such as to require the grant of a new trial, in the absence of any showing to the contrary.

2. This being a proceeding for the writ of mandamus to compel a judge to certify a bill of exceptions assigning error on his refusal to permit an extraordinary motion for a new trial and an amendment thereto to be filed, and on his refusal to grant to the movant a new trial as prayed, and, after issuance of a mandamus nisi, the petition for the writ and the response as filed by the judge showing the facts stated in the preceding note, this court will order that the mandamus be made absolute, requiring the judge to certify the bill of exceptions as tendered.

Frank A. Bowers, of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., E. A. Stephens, and J. Walter Le Craw, all of Atlanta, for defendant in error.

BELL Justice.

Will Wright was convicted of the offense of rape and sentenced to electrocution. He filed a motion for a new trial which the court overruled, and the judgment was affirmed by this court March 10, 1937. Wright v. State, 184 Ga. 62, 190 S.E. 663. On June 10, 1937, he presented to the judge of the superior court an extraordinary motion for new trial, and on June 21 offered an amendment thereto, at which time the judge refused to allow either the motion or the amendment filed and refused to grant a new trial as prayed. Thereafter, within due time, the movant presented a bill of exceptions complaining of the action of the court in reference to such proceedings. The judge having refused to certify the bill of exceptions, the movant filed in this court a petition for the writ of mandamus to compel him to do so. On this petition a mandamus nisi and supersedeas were ordered. The judge has made response, and the question now before this court is whether the mandamus should be made absolute.

The grounds of the extraordinary motion for new trial relate to the alleged disqualification of one who served as a juror. The petition for the writ of mandamus and the exhibits attached thereto disclose the following facts: In the selection of a jury to try the accused, a person answering to the name of J. B. Nabors was accepted both by the state and the accused, and served as a member of the jury which returned a verdict against the accused. There were two persons of this name residing in the county where the trial was had, to wit, J. B. Nabors, Sr., and J. B. Nabors, Jr., being father and son. The name of the former is in the jury box, and for aught that appears he would have been a competent juror. Before the trial of the instant case, J. B. Nabors Jr., had been twice convicted of the offense of larceny of an automobile, and had served in the penitentiary for such offenses. His name was not in the jury box; and for all of these reasons he was incompetent to serve as a juror. J. B. Nabors, Sr., at the time of the trial, was an employee of the Southern Railway Company, and had been for several years. He had received a summons to serve as a juror at this term of the court, but on the suggestion of his son he permitted the son to answer the summons and serve in his stead. When the name 'J. B. Nabors' was called, the son responded, and in reply to inquiry then made in open court falsely replied 'that he was employed by the Southern Railway.' It appears that he was about 30 or 35 years of age. Before the trial of this case, he told an acquaintance that he was serving on the jury on his father's summons, and invited such acquaintance to 'come to the court and see him.' The grounds of the extraordinary motion are summarized in the amendment thereto, as follows: 'Movant avers that J. B. Nabors, who sat as a juror at the trial of movant, perpetrated a fraud upon this court and upon movant by actually personating and posing as his father, J. B. Nabors, Sr., an honest and upright citizen of Fulton County, Georgia, and a qualified juror of said county, whereas said J. B. Nabors who sat as a juror in movant's trial was actually J. B. Nabors, Jr., an ex-convict, a man who had previously pleaded guilty to two indictments of larceny of an automobile, endured sentences on each of said indictments, and who had a pending untried indictment charging him with larceny of an automobile, against him, at the time of movant's trial and at the present time, a man who has been six times indicted by the grand jury of this county for infamous felonies, and anything but an honest and upright citizen and a qualified trial juror. That by reason of such fraudulent personation on the part of J. B. Nabors, Jr., when he was put upon movant as a prospective trial juror at movant's trial, no reasonable degree of diligence on the part of movant or any or all of his counsel could have detected the fraud inflicted upon this movant by said J. B. Nabors, Jr.'

The previous convictions of J. B. Nabors, Jr., of the offense of larceny as alleged, were established by records of the superior court of Fulton county. Neither the movant nor any of his attorneys knew of the foregoing facts as to fraud and impersonation on the part of J. B. Nabors, Jr., or as to his previous conviction of larceny, until some time in June, 1937, after the conviction of movant and the affirmance of the judgment overruling his original motion for a new trial; nor could any of such facts have been discovered sooner by the exercise of ordinary diligence on the part of movant or any of his attorneys. The bill of exceptions, which it is alleged the judge refused to certify, contained the following: 'Be it further remembered, that on the 11th day of June, 1937, the defendant presented to the said trial judge, Hon. James C. Davis, an extraordinary motion for a new trial, and on the 21st day of June, 1937, the defendant presented to said Hon. James C. Davis an amendment to said extraordinary motion for a new trial, at which time the said trial judge refused to allow said extraordinary motion for a new trial and the amendment thereto, and refused to hear newly discovered evidence as set out in said extraordinary motion for a new trial and the amendment thereto, and refused to grant the defendant a new trial thereon. To this action of the said trial judge in refusing to allow defendant's extraordinary motion for a new trial and the amendment thereto, and in refusing to allow the filing of same, and in refusing to hear testimony in the form of newly discovered evidence as set out in said extraordinary motion for a new trial and the amendment thereto, and in refusing to grant the defendant a new trial thereon, the defendant excepted then and there, and now excepts, and says that the said trial judge should have allowed said extraordinary motion for a new trial, and should have allowed the amendment thereto, and should have allowed both of the same to have been filed, and should have heard testimony in the form of newly discovered evidence as set out therein, and should have granted the defendant a new trial on each and every ground therein taken and set out.'

The following is a copy of the material portions of the response filed by the judge: 'The extraordinary motion for a new trial in this case was presented to respondent on June 11 1937, at 9:00 o'clock a. m., about one hour before the defendant was scheduled to be electrocuted in Milledgeville. A new trial could not have been granted on said motion without a hearing upon the questions involved, nor could the motion have been denied at that time for the same reason. A denial of the motion at that time would have meant the electrocution of the prisoner, inasmuch as there was no time at that late moment for preparation of bills of exceptions, and a stay of execution by the Supreme Court. Desiring to preserve the...