Hardison v. Guerry

98 S.E. 392, 23 Ga. App. 498, 1919 Ga. App. LEXIS 171

• Court: Court of Appeals of Georgia
• Decided: March 1, 1919
• Docket: 10349
• Status: Published

Opinions

Broyles, P. J.

The petition for mandamus alleged: that on January 13, 1919, a bill of exceptions which was in due and legal form, and which was true and correct, was tendered to the trial judge; that three days later, on January 16, 1919, the judge returned to counsel for petitioner the bill of exceptions uncertified, together with the following written statemént: “Being of the opinion, after consideration, that I have neither the legal authority or legal right to certify it, I hereby respectfully decline to do so. Dupont Guerry, J. C. 0. M.” The bill of exceptions, as set forth in the petition, was as follows:

“Georgia, Bibb County. R. G. Hardison, plaintiff in error, vs. The State of Georgia. In the Court of Appeals of Georgia, January, 1919. Error from city court of Macon. Accusation for violation of the prohibition law, and plea of guilty.

“ (1) Be it remembered: That on the 11th day of January, 1919, the regular the December term, 1918, of the city court of Macon, before the Honorable Dupont Guerry, judge presiding, there came on to be heard the case of the State vs. R. G. Hardison, the same being an accusation charging the defendant with a violation of the prohibition laws of said State...

“ (2) The defendant waived arraignment and entered a plea of guilty to the accusation, whereupon the court imposed a sentence of eight (8) months imprisonment in the State Farm, four (4) months of which he might be relieved upon the payment of a fine of $200.00.

“(3) Judgment of the court was entered accordingly.

“ (4) To this sentence and judgment of the cour£, the defendant excepted, and now excepts, and assigns error on the same, upon the ground that the same was contrary to law; was cruel and unusual; was in violation of article 1, paragraph 9 of the constitution of Georgia, prohibiting cruel and unusual punishment; and upon the ground that the penalty attached to and provided in said law is contrary to law in that the same is cruel and unusual and in violation of article 1, paragraph 9 of the constitution of Georgia, prohibiting cruel and unusual punishments.

“(5) Plaintiff in error specifies as material to a clear understanding of the errors complained of the following portions of the record in said case, to wit:

“(1) Affidavit and accusation.

“(2) Plea of guilty.

“(3) Sentence and judgment of the court.

“And now comes the plaintiff in error, within the period allowed by law, and presents this his bill of exceptions, and prays that the same may be signed and certified, in order that the errors complained of may be considered and corrected. This 13th day of January, 1919.”

The answer of the trial judge to the mandamus nisi was as follows:

“To the Honorable Court of Appeals of the State of Georgia.

“In answer to the order to show cause before the honorable court why I should not be required to sign and certify the bill of exceptions in the above-stated case, I most respectfully submit the following statement of facts and reasons, which I then believed and now believe legal and sufficient: The bill of exceptions was true in its recitations of fact, except the usual recitation in paragraph 4 of the bill of exception, that ‘the defendant excepted,’ the first and only exceptions being those contained in the bill of exceptions. The statement in paragraph 4 of the petition, that ‘To this sentence and judgment of the court, your petitioner did then and there except and object to upon certain named grounds and reasons set forth in his bill of exceptions to the said sentence and judgment which was in due and legal form tendered to said court, the Hon. Dupont Guerry,’ is denied.

“The plea of guilty was entered on January 11th to an accusation containing two counts for violations of the prohibition law, one for ‘selling,’ and the other for ‘possession,’ and the court thereupon asked Mr. Barnes, counsel for defendant, if he desired to say anything in reference to. the sentence, and he responded in an appeal for clemency, and was joined, therein by the defendant and' two others, who said the defendant was a man of good character. The court thereupon sentenced the defendant as set forth in the bill of exceptions, and no question of constitutionality or other question was raised or mentioned before the sentence was pronounced or upon its being pronounced. An hour or more after that’and on the same day, January 11th, while the court was in recess, ‘the defendant being dissatisfied with the verdict (when there was no verdict) and the judgment of the court/ tendered a motion for a new trial (when there had been no trial) on the sole ground ‘because the judgment and sentence of the court is cruel and unusual punishment and in violation of art. 1, par. 9, of the constitution of Georgia, in that the sentence and judgment of the court is cruel and unusual; and that the penalty attached to and provided in said law which petitioner is charged with-violating is cruel and unusual.’ A full copy of said motion is as follows: ‘And now comes, the defendant in the above-stated case, through his attorney of record, and, being dissatisfied with the verdict and the judgment of the court, moves'for a new trial, on the following grounds, to wit: (1) Because the judgment and sentence of the court is a cruel and unusual punishment and in violation of art. 1, par. 9 of the constitution of Georgia, in that the said sentence and judgment of the court is cruel and unusual, and that the penalty attached to and provided in said law which petitioner is charged with violating is cruel and unusual. Wherefore the defendant asks that these, his grounds for a motion for a new trial, be inquired into, and prays a new trial may be granted to him.’ The court refused to recognize the same on the ground that a motion for a new trial could not be made in a case in which the defendant had pleaded guilty, and' because the ground alleged therein was not a ground for a new trial.

- “On January 13th the bill of exceptions was tendered as alleged, and, after such consideration as was practicable (the court being at the time engaged in court matters)", I refused to sign and certify the same on February [January ?] Í 6th, for the reason then given in writing, as follows: ‘Being of the opinion, after consideration, that I have neither the legal authority or legal right to certify it, I hereby respectfully decline to do so.’ Upon such refusal the court on the same day returned the bill to Mr. Barnes, notifying him of such refusal. Eight days after this, on 24th of January, Mr. C. A. Glawson, attorney for the' defendant, presented an application for a modification of the sentence, and the court, by written order, refused the same, for the reason that it regarded the sentence a moderate, one and. because the defendant had on the 21st of January been taken to the State Farm, where he was serving'his sentence, and the court had no power to modify the same. Since then the defendant has filed an application for executive clemency with the prison commission, and I have been, requested _.by the .same to say whether there was any reason why the same should or should not be granted, and on the 3rd inst. I responded, giving reasons in the negative. So far as I am informed or believe, that application is still pending in the executive department of the State.' For one offense under each count the defendant was punishable under the law by sentence to the State Farm or the chain-gang twelve months, by imprisonment in jail six months, and by fine one thousand dollars, so that for the two offenses he was punishable by twenty-four months to the State Farm or the chain-gang, twelve months in jail, and by fine two thousand dollars. He was sentenced to eight months, with the privilege of paying a fine of two hundred dollars and being thereupon relieved of four months. Should he pay the fine, it would be only one tenth of the full amount in which he was finable for the two offenses, and the remaining four months would be only one sixth of the time he could have been sentenced and he would suffer no jail imprisonment. If he should not pay the two hundred dollar fine, the eight months sentence to the State Farm would be only one third of the period for which he could have been sentenced for the two offenses and he would not pay any fine or suffer any jail imprisonment. When the difference in hardship and disgrace between State Farm sentence and a chain-gang sentence is considered, it may be safely said that his sentence is not more than one tenth, of the full measure of punishment provided by law.

“Of course any defendant in any criminal proceeding in the city court of Macon may except to any sentence pronounced by that court, but, as I understand, he must except in accordance with law, and his exceptions must be to some decision made by the court below, and upon some question that the reviewing court has jurisdiction to review. With neither of these requirements did the bill of exceptions comply. The first assignment is that The sentence is contrary to law’, and, in view of the contents of the bill of exceptions, this is of itself no assignment at all, because there is no distinct specification of a point on which error is assigned and no error is plainly and specifically set forth. It is not a ease in which a general exception to a final judgment is sufficient because error is assigned on previous controlling rulings or on any rulings at all. General and vague exceptions make no issue of law that can be passed on by the reviewing court. Neither in this exception nor in any other exception in the bill is there any allegation that the court erred in any decision or ruling, or that the court made any decision or ruling.

“The second assignment is that the sentence was cruel and unusual. The sentence of the court shows that the punishment was neither cruel nor unusual, but quite to the contrary, and. there is no specification as to how or why or wherein it is cruel and unusual. Giving the phrase used its constitutional signification, the .very mild punishment imposed is clearly excluded therefrom. If, however, these views are incorrect, how' can the honorable Court of Appeals pass upon whether the sentence is cruel and unusual or not? Upon what data could it act in declaring that the same is cruel and unusual? If the honorable court should decide that the punishment is cruel and unusual, how could the court decide to what extent the same is cruel and unusual? What could it do or direct to be done? What jurisdiction would it have to do anything or direct anything to be done ?

“The third and fourth assignments are as follows: The sentence was in violation of art. 1, par. 9 of the constitution of Georgia prohibiting cruel and unusual punishments, and the penalty attached to and provided in said law is contrary to law, in that the same is cruel and unusual and in violation of art. 1, and par. 9 of the constitution of Georgia, prohibiting cruel and unusual punishments. These two assignments have the infirmities of their two predecessors, and other infirmities. The Supreme Court of Georgia holds that if the question of constitutionality is not made in the lower court, it will not be passed upon by the appellate court; also, that if the question of constitutionality of a statute is not presented in the lower court, it will not be considered by the Supreme Court. This honorable court has held that it will not certify a constitutional question to the Supreme Court unless raised in a lower court. As has already been stated, no constitutional question was ever mentioned in the city court before or upon sentence. Before pleading guilty the defendant had opportunity to raise such question. If he could have raised it after plea and before, or upon sentence when orally pronounced or before it was reduced to writing and signed, he did neither. Afterwards, during the recess, he sought to raise such question by a motion for new trial and the court refused to recognize the same, as before stated, and the defendant two days afterwards tendered his bill of exceptions, in which he makes no exceptions to such refusal. Assuming that the exceptions in the bill of exceptions would be valid in a ease in which they could be legally taken, they are legally impossible in the instant case, because there is nothing to which the defendant can legally except in a bill of exceptions. It may be said that the city court of Macon, in sentencing the defendant, decided by implication that the law under which the sentence was imposed was constitutional, but the defendant makes no assignment of error on such decision. If such decision by implication in a criminal case can be excepted to and the judge of the court below must certify the bill of exceptions and thereupon grant a supersedeas, the end of litigation in criminal cases would certainly be made more remote. The rule would apply to sentences in all criminal cases, from murder down to the most trivial misdemeanor, and upon verdicts as well as upon pleas of guilty. A fair and reasonable presumption is that the defendant is seeking a reduction of the punishment imposed, on account of its severity, but this court and the Supreme ..Court have both held that they have no jurisdiction to act on such a subject-matter by review. Such a question, it is manifest, appertains to the executive department, under .the constitution.

“I assume the case will turn on the bill of exceptions I refused to certify, and not on allegations in the application which are denied. My view was that I had no authority to sign the bill of exceptions, because it was not a bill of exceptions, because it contained no exceptions and the recitations therein showed that there was no decision or ruling excepted to or that could be excepted to; and, separating-(perhaps illogically) the question into two questions,— that of authority and that of right,—I believed I had no right to certify the bill of exceptions presented and cause it to be transmitted to the honorable court. The judge of the lower court can not exercise any discretion either in certifying a bill of exceptions or in refusing to do so, and under my. conviction as to- the law it was my duty to the honorable court, as well as otherwise, to refuse. Most respectfully, Dupont Guerry, Judge of the City Court of Macon.”

We think the answer of our learned brother of the trial bench, even when shorn of those paragraphs which may bear upon the merits of the assignments of error in the bill of exceptions, gives several sufficient reasons (and one is enough) why he should not be required to certify' the bill of exceptions which was tendered him.

When properly construed the bill of exceptions contains but a single assignment -of error,—in effect as -follows: The judgment and sentence of the court, and the penalty attached to and provided in the prohibition law of the State, are contrary to law, in that the same are in violation of article 1, paragraph 9, of the constitution of Georgia, prohibiting cruel and unusual punishments. This exception attempts to raise a constitutional question. If the question were raised, this court would have no jurisdiction to entertain the bill of exceptions, but would transfer it to the Supreme Court. It is obvious, however, that no constitutional question is raised, and therefore, there being no other assignment .of error, the. bill of exceptions presents no question for determination by this court, and if it were certified and brought up, the writ of error -would necessarily be dismissed. . This ruling is not in -conflict with the decision in Taylor v. Reese, 108 Ga. 379 (35 S. E. 917), and the other numerous decisions of the Supreme Court and of this eouxrt which hold that in passing upon a petition for mandamus the reviewing court will not consider the merits of the questions presented by the bill of .exceptions. As was said by Mr. Justice Candler in Willis v. Felton, 119 Ga. 634 (46 S. E. 857): “This case is, of course, clearly distinguishable from those, where this court has held that it will, without enquiring into the merits of the case, issue a mandamus absolute to require a trial judge to certify the truth of a bill of exceptions complaining of the overruling of a motion for a new trial or of any ruling which necessarily controlled the verdict of the fury. It belongs rather to that class of easés where the merits of the questions sought to be reviewed have already been determined, and a further consideration of thpm would be futile.” (Italics ours.) Furthermore, we do not think that any of those decisions ever conceived of a bill of exceptions so wholly without even the shadow of a meritorious assignment of error as the one now under consideration. As was said by Mr. Justice Cobb in Rawlins v. Mitchell, 127 Ga. 24 (55 S. E. 958), in referring to the decision in Taylor v. Reese, supra: “While in the case just cited some very broad language is used by Mr. Presiding Justice Lumpkin in the opinion, the case that he was then dealing with must be kept in mind, and it was a case where the first bill of exceptions after a trial and verdict was tendered to the judge. ' It is worthy of remark, in passing, that it afterwards developed that the bill of exceptions presented a meritorious case, the judgment being reversed when the case was finally passed upon by this court. See Taylor v. State, 108 Ga. 384 [34 S. E. 2]. . . While no party will be deprived of a hearing on the merits of his case, no matter what may be its character, whether an extraordinary motion for a new trial, motion to set aside a judgment, or other proceeding after verdict, the judge of the superior court will riot be compelled to certify a bill of exceptions in such proceeding unless it is made to appear to this court that the applicant has been denied some right guaranteed to him by law. . . But the case will not be prolonged by requiring the bill of exceptions to be certified, when it is apparent from the averments of the petition for mandamus and the bill of exceptions .that an affirmance of the judgment complained of would in any event be the inevitable result. . . The ruling now made is in line with the view of the majority of the court in Willis v. Felton [supra]. The writer dissented in that case on the idea that the case of Taylor v. Reese, supra, was controlling; but upon further reflection and investigation he is of the opinion that that case did not go to the extent then contended for, and he is therefore prepared to concur in the view above set forth.” (Italics ours.) In the same case (Rawlins v. Mitchell), in a concurring opinion, Justices Evans, Lumpkin, and Atkinson said: “We concur in the ruling in this ease, and the result reached. We think, however, that, while generally a first bill of exceptions which is true and duly prepared and presented in accordance with law, and which assigns error on a final judgment, should be signed, yet it is not an arbitrary and invariable rulé that this court will by mandamus compel the signing even of a first bill of exceptions, wholly regardless of what it contains.”

It has often been said by law-writers, and quoted approvingly in numerous decisions of both of the reviewing courts of this State, that “the law does not require the doing of a vain thing.” The bill of exceptions in the present case is upon its face so absolutely and utterly devoid of any merit whatsoever that to require it to be certified and brought to this court would be merely a waste of time and “an idle and useless ceremony”.

Mandamus absolute denied.

Bloodworth, J., concurs. Stephens, J., dissents.