Garrett v. State

89 S.E. 380, 18 Ga. App. 360, 1916 Ga. App. LEXIS 354

• Court: Court of Appeals of Georgia
• Decided: June 30, 1916
• Docket: 7264
• Status: Published

Opinion

Hodges, J.

1. The crime of perjury can be committed only in a “judicial proceeding.” Penal Code, § 259. A “judicial proceeding” is a proceeding in a legally constituted court.

2. There can be no subornation of perjury where perjury is not committed.

3. The act of the General Assembly establishing the criminal court of Atlanta provides that the judge of that court may preside in the city court of Atlanta “whenever agreed upon by the judges of both courts, and for any length of time, or whenever the judge of the city court of Atlanta is disqualified;” and that the judge of the criminal court may preside in the city court “while the judge of the latter court is presiding therein, whenever in the opinion of the judge of the city court : . it is necessary for the prompt dispatch of business for the said court to sit in two divisions, so that both judges may try the business of the city court at the same time.” Acts 1890-91, vol. 2, p. 939, sections 17 and 18. Except as' stated in these provisions, the judge of the criminal court of Atlanta is not authorized to act as judge of the city court of Atlanta.

4. Where the judge of the criminal court of Atlanta, at a time when the judge of the city court of Atlanta was absent from the State, undertook to act as judge of the city court in heaving a petition for discharge from imprisonment in a bail-trover proceeding pending in the city court, and where the judge of the city court was not disqualified to preside in the case and there was no agreement by both judges whicn authorized the judge of the criminal court to preside in that case, the acts of the judge of the criminal court as judge of the city court in that case were not authorized by the act of the General Assembly establishing the criminal court of Atlanta, and were coram non judice, the testimony given before him was not given in a “judicial proceeding,” and therefore the crime of perjury could not be committed therein, and, as to such testimony, the crime of subornation of perjury could not be committed. Judgment reversed.

Citations by counsel:

Ga. Laws, 1890-91, vol. 3, p. 939; Civil Code (1910), §§ 5154, 6519; Welborne v. State, 114 Ga. 793; Welborne v. Donaldson, 115 Ga. 566; Ivey v. State, 112 Ga. 175 (4), 181; Stewart v. Crane, 87 Ga. 330; Allen v. State, 102 Ga. 627; Albea v. Watts, 114 Ga. 151; State v. Woodson, 161 Mo. 444; Edmondson v. State, 123 Ga. 196; Northwestern Mut. L. Ins. Co. v. Wilcoxon, 64 Ga. 557; Penal Code (1910), § 259.

Hines & Jordan, George F. Gober, W. I. Heyward, for plaintiff in error- Hugh M. Dorsey, solicitor-general, E. A. Stephens, contra.