Loomis v. State , 203 Ga. 394 ( 1948 )

1. 2. Under the provisions of the Constitution defining jurisdiction of the Supreme Court and the Court of Appeals, the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general way, of unquestioned and unambiguous provisions of the Constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States or any treaty.

3. A litigant who knows that a statute is directly involved and forms the basis of the litigation, and which he must therefore necessarily know would govern the court in its instruction to the jury, cannot wait until after the trial has ended and then for the first time bring into question its constitutionality by a motion for new trial complaining of the judge's charge. The rule would be different if the litigant could not know or could not reasonably anticipate that the substance of the statute would be given in charge to the jury.

4. An exception to a portion of the judge's charge to the jury, on the ground that it constitutes such a construction of a designated statute "as renders the same unconstitutional," does not, without more, amount to an attack upon the statute itself as being unconstitutional, so as to bring the case within the jurisdiction of the Supreme Court.

(a) The present case does not present any constitutional or other question such as would fix jurisdiction in this court, and it is therefore transferred to the Court of Appeals.

No. 16092. MARCH 19, 1948. An indictment returned by the grand jury of Fulton County and containing five counts charged Homer L. Loomis Jr. and Emory Burke with violations of the Code, § 26-4902, under which "Acting as peace officer without authority" is made a misdemeanor; the terms of this section being as follows: "Any person who shall, without authority, exercise or attempt to exercise the functions of, or hold himself out to anyone as, a deputy sheriff, marshal, policeman, constable, or other peace officer or detective shall be guilty of a misdemeanor: Provided, that nothing in this Chapter shall be construed to interfere with the police powers granted to conductors of passenger trains, nor shall this and the preceding section apply in times of riot or unusual disturbance, or in other instances provided for by law." Loomis demurred to the indictment, his demurrer was overruled, and he excepted pendente lite. He also filed what he designated a "plea of double jeopardy," which the judge dismissed on an oral motion and demurrer of the State, and to this ruling Loomis again excepted pendente lite. On the trial, the jury returned a verdict finding Loomis guilty on three of the five counts, to wit, counts 2, 4, and 5, and not guilty on counts 1 and 3. Sentences were imposed in accordance with the findings on counts 2, 4, and 5. His motion for a new trial, based on the usual general grounds, and numerous special grounds added by amendment, was overruled, and he excepted, assigning error on his exceptions pendente lite, as mentioned above, and on the refusal of a new trial.

In the bill of exceptions, which was returned to this court, it is stated: "The Supreme Court, and not the Court of Appeals, has jurisdiction hereof because questions are raised herein under the Georgia and United States Constitutions and as to the constitutionality of Georgia statutes (grounds of amended motion, 1, 4, 13, 15, 16a, 16b, 16d, 19, 31)." The following statement will indicate the general nature of these grounds, although they are mentioned here in a somewhat different order from the enumeration in the bill of exceptions.

Special ground 1 of the motion for new trial assigned error on the admission of certain testimony as to the defendant's belief in the Bible, over stated objections of the defendant.

Special ground 13 assigned as error the oath administered to the jurors trying the defendant, whereby they swore to be guided by the evidence, instead of an oath whereby they would have been sworn to be guided by the evidence and the movant's statement.

Special ground 15 assigned error on the propounding of the first of the three voir dire questions. "Have you from having seen the crime committed or having heard any of the testimony delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar?" The assignment of error was that the phrase, "alleged crime," should have been used instead of the word "crime."

Special ground 16b assigned error on the judge's charge on the subject of conspiracy.

Special ground 16d assigned error, "because the court erred in enforcing seating arrangements for counsel at counsel table, that constituted an unfair advantage for State's counsel and an unfair disadvantage for movant and his counsel and a denial of due process for movant in violation of his said constitutional right of due process."

Special ground 31 assigned error on the court's failure to grant a mistrial for allegedly improper remarks made by counsel for the State.

In each of the above six grounds, movant alleged the error therein complained of violated stated provisions of the State and Federal Constitutions; the only constitutional provisions referred to in any of these grounds being those relating to due process, freedom of conscience, and religious opinions. See Code, §§ 1-801, 1-815; Code (Ann. Supp.), §§ 2-103, 2-112, 2-113.

Special ground 4 complained because the judge, upon his own initiative, denied to movant his constitutional right actively to participate with his counsel in the conduct of his own defense by himself conducting the cross-examination of witnesses against him for the State, and particularly the witness, H. C. Newton, a detective of the City of Atlanta; the ruling of the court being that in order to avail himself of such right of cross-examination the movant would have first to dismiss his then counsel definitely from the case and forfeit any and all right to reinstall him as such counsel at any later stage of the case, although he made timely announcement of his intention to cross-examine the said witness and of his request and desire to do so immediately on the conclusion of the said witnesses's direct examination by counsel for the State, before any cross-examination of said witness had been undertaken and while said witness remained upon the stand for the purpose of cross-examination. The movant's request and attempt to exercise his said asserted right to cross-examine the said witness and other witnesses for the State, as supported and urged by himself and his counsel, who consented thereto, and the court's said ruling thereon, were as follows:

The attorney specifically invoked the provision of the 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." See Code (Ann. Supp.), § 2-104.

This ground of the motion then sets forth a lengthy colloquy, in which the judge, the defendant, and the defendant's attorney, all participated, parts of the colloquy being as follows:

The court: "I am going to rule this: Just as long as your father is your counsel and attorney representing you, only he can ask the questions. If you reach the state you have no counsel and don't desire a counsel appointed for you, I will permit you to conduct your own defense. If you reach that state I am going to give you an opportunity to select counsel."

The defendant: "I was the only one present when most of the things that have been related to the jury and the court for the last couple of days occurred, and I am the only one able to know when the truth is being told and when the truth is not being told."

The defendant: "I am the only one in position to know when the witnesses get on or off the truth or when certain points are left out in their cross-examination, in their direct examination, and it is not that I am dissatisfied with counsel, but I have to talk with him and confer with him and half the time he doesn't know what is right and what is not, and it takes up the court's time when he asks about a thing that is wrong, that is not wrong, when it was the truth, and otherwise I have to direct him —."

The court: "You have the right to confer with him any time you want to. He is your counsel."

The defendant: "Yes, I understand that, but now what I would like to know is this, if I did, it is a tremendous advantage in talking direct to the witness, now if I did take over the case, Your Honor, and cross-examine this witness from here on, then that means that when the arguments come, I must carry on with the arguments? For instance, if my father does not continue the case for me any longer through the questioning of the witnesses, can I reobtain him?"

The court: "No, sir."

The court: "I have ruled this, Mr. Loomis, and I think you as a lawyer know what the law is. With regard to the defendant representing criminal cases, the defendant has the right to come into court and defend himself. Where he selects counsel to represent him, the case is tried by counsel, he is represented by counsel, and since he has counsel, the court will only permit counsel for him to ask questions and argue the case. Now if he hasn't got counsel and doesn't want the court to appoint him a counsel, then he can conduct his own defense, but I am not going to permit a mix-up, start off by your representing him as counsel and then stop and let him step in and represent himself and then permit you to have anything further to do with the case."

Mr. Loomis: "Doesn't Your Honor in that ruling strike out the words, `or both,' of paragraph four of section one of the Bill of Rights?"

The court: "No, sir."

Mr. Loomis: "May I ask Your Honor as a matter of information what those words are supposed to mean?"

The court: "I am not construing the Constitution now. I am simply passing on the request of your son to be permitted to act as his own counsel, and I am ruling as long as he has you as counsel you will have to represent him."

In the motion for a new trial, it is contended that the ruling of the court as above stated deprived the defendant of his right to defend his own case in person, by attorney, or both, as declared in the foregoing constitutional provision; and that the exercise by the defendant of his right of cross-examination was indispensable in this particular case (for reasons stated) for the preservation of his rights and liberties unimpaired and unprejudiced.

The defendant yet recognized his own limitations, in so far as the other phases of the case were concerned, and was, therefore, unwilling — if there was in fact no alternative — to pay the price of dispensing with his counsel in respect to these other matters, even in order to gain the much valued and much desired right of personal cross-examination. Still other assignments of error were contained in this ground.

Special ground 16a assigned error on a long excerpt from the court's charge referring to counts 2, 4, and 5 of the indictment, and as to each count instructing the jury that if they believed beyond a reasonable doubt that the defendant committed the offense as alleged, they would be authorized to convict him. Assignments (f) and (g) were as follows:

(f) "Because, as to each and every one of counts two, four, and five of said indictment, said section 26-4902 of the Georgia Code [is] inapplicable, because the same was unconstitutional in that it violated the due-process guaranties of both the Constitution of the State of Georgia [citing], and the Constitution of the United States of America [citing], which respectively read as follows [quoting said provisions] and which were violated by said section 26-4902 in at least two respects, viz.:

"1. In that the said statute was too vague and indefinite to define the incidence of guilt — that is, the event or events in which the things therein denounced were prohibited and made punishable — since it in effect provided that it made the things therein denounced be criminal and forbidden and made the same punishable as therein provided only when they were not otherwise provided for by law.

"2. In that said statute was too vague and indefinite in defining the thing therein denounced as criminal and forbidden, and thus failed to provide any reasonable or sufficiently ascertainable standard of guilt."

(g) "Because, as to each and every one of counts two, four, and five of said indictment, said section 29-4902 of the Georgia Code was, as construed by the court, inapplicable, because, as so construed by the court, unconstitutional, since the court construed the statute as making punishable the doing of anything by a private citizen, as such, which happens also to be one of the things done by policemen in the performance of their public duties, and not as making punishable such act only when so done by one not a policeman under the claim and pretense that in so doing he was a policeman, and thus construed the statute in such a way as to make it abridge the privileges and immunities of citizens of the United States, contrary to section I of the Fourteenth Amendment of the United States, supra, movant being, according to the uncontradicted proofs, a citizen of the United States and, therefore, entitled to the protection of the said constitutional guaranty."

Special ground 19 assigned error on two excerpts from the judge's charge to the jury, the first of which was as follows:

"I charge you that the police of a State, in a comprehensive sense, embraces its system of internal regulation by which it is sought not only to preserve the public order, and to prevent offenses against the State, but also to establish, for the intercourse of citizen with citizen, those rules of good manners and good neighborhood which are calculated to prevent a conflict of rights and to insure to each the uninterrupted enjoyment of his own, so far as is reasonably consistent with a like enjoyment of rights by others."

By the second excerpt, the jury were instructed that "The word `police' is the function of that branch of the administrative machinery of the government which is charged with the preservation of public order and tranquility, promotion of public health, safety and morals, and the prevention and punishment of crimes."

The only assignments of error which undertook to raise any constitutional question in relation to either of these instructions were as follows:

"And, finally, both portions of the court's charge as quoted and complained of in this ground constitutes such a construction of the said statute, to wit, section 26-4902 of the Code of the State of Georgia, as renders the same unconstitutional, since, as so construed, the said statute violates the principle of due process as secured and guaranteed by" quoted provisions of the Constitutions of Georgia and the United States. "The statute offends against said principle of due process and said constitutional guaranties respectively, because it provides no reasonably or sufficiently ascertainable standard of guilt when construed as the court has here construed it in the charge complained of in this ground. This is the first opportunity movant has had to complain of the court's said erroneous charge and said unconstitutionality of statute as construed therein." 1. It is the duty of this court, with or without motion of a party, to consider the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction; and the present case is one calling for such inquiry. Brockett v. Maxwell, 200 Ga. 213 (1) (36 S.E.2d 638). We have carefully examined the several grounds of the motion for a new trial enumerated in the bill of exceptions, together with all other grounds of the motion, from the viewpoint of jurisdiction, and have reached the conclusion that this court does not have jurisdiction of the case. The alleged offenses of which the defendant was convicted were misdemeanors only, whereas this court does not have jurisdiction of a criminal case as such unless the accused was convicted of a capital felony. The plaintiff in error contends, however, that jurisdiction of the particular case is vested in the supreme court because of certain constitutional questions, which he claims were duly and properly raised in his motion for a new trial. There is nothing else in the record that would require mention in relation to jurisdiction.

In Gulf Paving Co. v. Atlanta, 149 Ga. 114 (1) (99 S.E. 374), this court ruled: "Under the constitutional amendment of 1916, defining the jurisdiction of the Supreme Court and the Court of Appeals of this State (Ga. L. 1916, p. 19, Park's Code Supp. 1917, § 6502, 6506), the Court of Appeals has jurisdiction to decide questions of law that involve application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts, and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of the State or of the United States, and that do not involve the constitutionality of any law of the State or of the United States, or any treaty." The decision in that case was based upon the Constitution of 1877, as amended in 1916, and it has been quoted and followed in numerous later cases. The rule is the same under the Constitution of 1945. See Code of 1933, §§ 2-3005, 2-3009; Ga. L. 1945, pp. 43, 44 (Code, Ann. Supp., §§ 2-3704, 2-3708).

So, in Dade County v. State of Georgia, 201 Ga. 241 (2a) (39 S.E.2d 473), it was held: "The Court of Appeals and not the Supreme Court has jurisdiction of a case involving a mere application, in a general sense, of unquestioned and unambiguous provisions of the Constitutions of this State and the United States." The rule as thus stated applies to each and all of the six special grounds of the motion for a new trial that the first set forth in the preceding statement, to wit, 1, 13, 15, 16b, 16d, and 31, so that none of these grounds raised any question that would place jurisdiction in this court.

If Forrester v. Interstate Hosiery Mills, 194 Ga. 863 (23 S.E.2d 78), cited by the plaintiff in error, is in any way contrary as related to jurisdiction, the decision in that case appears upon its face to be a mere physical precedent; also, it would yield as authority to Gulf Paving Co. v. Atlanta, supra, and numerous other cases older than the Hosiery Mills case, such as Head v. Edgar Brothers Co., 187 Ga. 409 (200 S.E.2d 792), and cases cited. See Code, § 6-1611.

2. In special ground 4 it appears that the defendant requested the court that he himself be allowed to cross-examine a named witness, stating in effect that he was better acquainted with the facts, to which the witness had testified on direct examination, than his attorney was, and that he was therefore in better position than his attorney to conduct such cross-examination; his attorney at the same time invoking in his behalf the provision of the 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." The court denied the request unless the defendant would dismiss the attorney who was at that time representing him.

It is contended for the plaintiff in error that the meaning of the quoted provision of the Constitution is doubtful under its own terms and under the decision of this court in Roberts v.State, 14 Ga. 18 (2), so as to require construction of such provision in the present case. We can not agree. The constitutional provision referred to in the Roberts case was contained in section 8 of article 3 of the Constitution of 1798, then in force, and declared that "No person shall be debarred from advocating or defending his cause before any court or tribunal, either by himself, or counsel, or both." Cobb's Digest, p. 1123, par. 46; McElreath on Constitution of Georgia, 263, § 398. The decision was in part as follows:

"The prisoner was represented by counsel on the trial, and the examination of witnesses was conducted by one of them. After a full cross-examination of one of the witnesses called for the State, the prisoner asked leave to examine him further, which was refused; and this is complained of as violating his constitutional right of defense by himself, his counsel, or by both. His right was not violated. He appeared in person and by his counsel. He was entitled to conduct the examination, and if he had asked leave to do so in the outset, the request, no doubt, would have been granted. He did not think proper to make the request, but devolved that service upon his counsel. Having arranged with counsel, that one of them should conduct the examination, the court held him to it. Had he not held him to it, he would have compromitted the order, decorum, and efficiency of the court. The presiding judge in the courts of this country, has the power to prescribe the manner in which business shall be conducted — a power which it is not absolutely certain the legislature can take from him, unless it is exercised in such a way as to involve a deprivation of right. All rights in a court of justice are of necessity enjoyed through forms of procedure — indeed, the rules of the court, and the ever-present power of the judge, to maintain order — to prevent unnecessary consumption of time, and to discipline the action of the court in ways and at times, and under circumstances which do not admit (in a judge's opinion!) of specification, are indispensable to the fullest enjoyment of every right. What Judge Starke did in this case, was nothing more nor less than to enforce the usual rule of the court, as to the manner in which the prisoner shouldexercise his constitutional right of defense in person. As well might he complain, that he was denied the right of trial by jury, because the law prescribes the manner of summoning and selecting his jury."

It thus appears that the constitutional provision here under consideration is plainly subject to the inherent power of the court to prescribe the manner in which the business of the court shall be conducted, provided that this power can not be "exercised in such a way as to involve a deprivation of right." Accordingly, special ground 4 involves nothing more than application of a plain and unambiguous provision of the Constitution to a given state of facts, for the purpose of determining whether the trial judge erred as contended therein, and, like the grounds considered in the preceding division, would come within the jurisdiction of the Court of Appeals. In all such instances, the court of review would simply consider and apply the constitutional provision just as it would any other plain and unambiguous law, for the purpose of determining whether error was committed. See generally, in this connection, Moyers v.State, 61 Ga. App. 324 (3) (6 S.E.2d 438); Rex v. White, 170 Eng. Rpts. 1318; Leahy v. State, 111 Tex. Crim. 570 (13 S.W.2d 874); State v. Ingram, 316 Mo. 268 (289 S.W. 637); People of the State of California v. Northcott, 209 Cal. 639 (289 P. 634, 70 A.L.R. 806, 817).

3. In ground 16a, the movant assigned error upon a portion of the judge's charge where he referred to counts 2, 4, and 5 of the indictment, and as to each count instructed the jury in effect that, if they believed beyond a reasonable doubt that the defendant committed the offense as alleged, they would be authorized to convict him. It was alleged in this ground that each and every count of the indictment was based upon § 26-4902 of the Code of Georgia, and it was complained that such charge was erroneous for the reason that the statute is unconstitutional and void under stated provisions of the State and Federal Constitutions. "A question as to the constitutionality of a law can not be raised for the first time in a motion for new trial, where it was not made either by demurrer to the pleadings or by objections to the evidence, or in some other appropriate way pending the trial." Hendry v. State, 147 Ga. 260 (8) (93 S.E. 413);Starling v. State, 149 Ga. 172 (99 S.E. 619); Stone v.State, 202 Ga. 203 (42 S.E.2d 727). The defendant knew that the statute here sought to be drawn in question formed the basis of the indictment, and therefore should have anticipated the charge upon which error is assigned. Savannah Electric Co. v. Thomas, 154 Ga. 258 (2) (113 S.E. 806). "A litigant, who knows that a statute is directly involved and forms the basis of the litigation, can not be permitted to wait until after the trial has ended to bring in question its constitutionality, which he must necessarily have known would govern the court in its instructions to the jury. The rule would be different if the litigant could not know or could not reasonably anticipate that the substance of the statute would be given in charge to the jury." Boyers v. State, 198 Ga. 838, 843 (3) (33 S.E.2d 251). See also Moore v. State, 194 Ga. 672 (22 S.E.2d 510).

4. Special ground 19 complained of two excerpts from the judge's charge to the jury, on the ground that these portions of the charge constitute such a construction of the Code, § 26-4902, "as renders the same unconstitutional;" and it was further alleged that "This is the first opportunity movant has had to complain of the court's said erroneous charge and said unconstitutionality of statute as construed therein." Aside from other questions, this ground of the motion does not attack the statute itself as being unconstitutional, but simply avers in effect that it would be unconstitutional when construed as the court construed it. So, neither does this ground raise any question as to the constitutionality of the statute. See, in this connection, Northwestern Mutual Life Insurance Co. v.Suttles, 201 Ga. 84 (2), 103 (38 S.E.2d 786), and cases cited.

(a) Under the rulings made above, no constitutional question was properly made in the case such as would bring it within the jurisdiction of this court, and it is therefore.

Transferred to Court of Appeals. All the Justices concur,except Atkinson, J., who dissents, and Wyatt, J., who took nopart in the consideration or decision of this case.