Opinion
34546.
DECIDED FEBRUARY 28, 1953.
Application for mandamus.
Geo. W. Westmoreland, Jas. W. Arnold, for petitioner.
Where a defendant charged with a misdemeanor moves for a new trial by extraordinary motion, which motion is entertained, and a countershowing made, and the trial court on the hearing denies such motion, and where the defendant presents to the trial court his bill of exceptions assigning error on the ruling denying such motion for a new trial, which the trial court signs and certifies, the defendant is entitled as a matter of right, under the provisions of Code § 27-901, to be admitted to bail, and it is the duty of the trial judge to assess the amount thereof and allow such defendant to execute a supersedeas bail bond pending the disposition of such bill of exceptions.
DECIDED FEBRUARY 28, 1953.
A. D. Allen Jr. was tried and convicted in the Superior Court of Jackson County for carrying a pistol without a license in violation of Code § 26-5103, which provides that it shall be unlawful to carry about one's person or have in his manual possession outside of his home or place of business any pistol or revolver without first taking out a license from the ordinary. Code § 26-5106 provides that same shall be punished as a misdemeanor. The defendant moved for a new trial, and to the judgment denying it excepted to this court, which on July 12, 1952, affirmed the trial court ( Allen v. State, 86 Ga. App. 604, 71 S.E. 870), and a rehearing was denied. Thereafter, the defendant, A. D. Allen Jr., presented to Honorable Clifford Pratt, Judge of Jackson Superior Court, his extraordinary motion for new trial based upon newly discovered evidence. Code, § 70-303. The State made a counter-showing, and on the hearing said motion was denied. Thereupon, within due time, the movant for new trial, defendant Allen, presented for certification to Honorable Clifford Pratt, judge of said superior court, his bill of exceptions, assigning error on the denial of his extraordinary motion for new trial. The court certified the bill of exceptions, but denied a supersedeas bond to the defendant, rendering this order and judgment: "In the above-stated case, A. D. Allen Jr., having been convicted in the superior court of said county of a misdemeanor, and from such conviction made a motion for a new trial, which upon hearing was denied, and the case carried by writ of error to the Court of Appeals of Georgia, which court affirmed the judgment of the trial court, and upon the remittitur therein having been filed in the office of the clerk of the Superior Court of Jackson County, and judgment entered thereon, and said defendant, A. D. Allen Jr., having failed to appear his supersedeas bond was forfeited, and some months thereafter he was arrested by a deputy sheriff of said Jackson County, and thereupon presented his extraordinary motion for a new trial, and upon a hearing a new trial was denied; and now a bill of exceptions thereto has been tendered and certified, and counsel for said A. D. Allen Jr. has now made an oral motion for a supersedeas bond, it is considered, in view of the principles governing extraordinary motions for new trials, being the equity of the criminal law, the undersigned deems it to be inequitable to grant a supersedeas bond under the extraordinary circumstances. Ordered that a supersedeas bond is denied. This 30th day of January, 1953. [Signed] Clifford Pratt, Judge, Jackson Superior Court."
Thereupon, the defendant, A. D. Allen Jr., presented to this court his petition for a mandamus. A rule nisi issued thereon and his Honor, Judge Clifford Pratt of Jackson Superior Court was directed to show cause in writing before this court on Friday, February 6, 1953, why he should not allow said defendant, petitioner for mandamus, to make a supersedeas bond in said case. The respondent appeared and replied to said petition for mandamus, contending that under the law (Code, § 27-901), he was invested with the discretion as to the giving of such supersedeas bond under the facts of the present case.
When the judge of the superior court below signed and certified the bill of exceptions assigning error on the denial by that court of the defendant's extraordinary motion for a new trial, the Court of Appeals became vested with jurisdiction of the case. The Court of Appeals may compel the trial judge in a proper case to sign and certify a bill of exceptions. The court may entertain the petition for mandamus for that purpose, and deny or overrule or grant it, as is proper under the circumstances and the law. So the Court of Appeals may compel the judge of the superior court in a case of which it has jurisdiction to grant a supersedeas, and, if necessary, to admit the party to a supersedeas bail. Yeates v. Roberson, 4 Ga. App. 573 (4) ( 62 S.E. 104). It now remains to be seen whether or not the Judge of the Superior Court of Jackson County, respondent herein, should have granted the supersedeas and assessed the amount of the appeal bond and permitted the defendant in the case to be released on a supersedeas appeal bond. "Capital offenses are bailable only before a judge of the superior court; and this is in every case, a matter of sound discretion. All other cases are bailable by the committing court. At no time, either before the commitment court, when indicted, after a motion for a new trial is made, or while a bill of exceptions is pending, shall any person charged with a misdemeanor be refused bail." Code, § 27-901.
To this court the legislative intent seems clear. In 1922 (Ga. L. 1922, p. 51), the General Assembly amended Code § 27-901 by adding thereto the last portion, viz.: "At no time, either before the commitment court, when indicted, after a motion for a new trial is made, or while a bill of exceptions is pending, shall any person charged with a misdemeanor be refused bail." (Italics ours.) It does not seem to this court that the General Assembly could have been any more explicit in expressing their intention in regard to misdemeanor offenses. When the trial judge entertained this extraordinary motion for a new trial, which he was not compelled to do (see Loomis v. Edwards, 80 Ga. App. 396, 56 S.E.2d 183), there was a motion for new trial pending. The State made a counter-showing, and the court heard the motion, denying the same. Thereupon the movant for new trial, Allen, presented to the trial court his bill of exceptions, assigning error on the overruling of his extraordinary motion for a new trial, and the trial judge certified it. There was then a "bill of exceptions" pending, in a misdemeanor case. Where a bill of exceptions is filed as specified in Publishers' Pocket Supp. to Code § 6-1001, Code § 6-1005 provides that it "shall operate as a supersedeas." Under the provision of the section above referred to (Code § 27-901), as amended in 1992, it was the duty of the trial judge when he signed and certified the bill of exceptions to assess the amount of bail and permit the defendant to make a supersedeas bond. The defendant was entitled thereto under the above statute as a matter of right. This would not be the situation if the offense was a felony instead of a misdemeanor.
When the court has signed the bill of exceptions, investing this court with jurisdiction, this court has the power and jurisdiction to require the trial court by mandamus to assess the amount of the supersedeas bail and admit the defendant in error to bail. Yeates v. Roberson, supra. See also, on the foregoing question, Johnson v. Aldredge, 192 Ga. 209 ( 14 S.E.2d 757); Cain v. Grimes, 198 Ga. 566 ( 32 S.E.2d 302); Vanderford v. Brand, 126 Ga. 67 ( 54 S.E. 822); Crumley v. Gibbs, 149 Ga. 119 ( 99 S.E. 297). It is to be kept in mind that the rule is different where the plaintiff in error, even in a misdemeanor case, is not bringing in question the legality of his conviction, but is seeking a review of alleged errors subsequent thereto. See Cain v. Grimes, supra; Muckle v. Aldredge, 192 Ga. 426 ( 15 S.E.2d 605).
In dealing with an extraordinary motion for a new trial (in a misdemeanor case), the trial judge is vested with a broad discretion. He may even not entertain it. If he does entertain it and in the proper exercise of his discretion denies it or overrules it, he will not be required by mandamus to sign a bill of exceptions to the appellate courts. In such event the defendant would not be entitled to a supersedeas bond in a case like the instant one. But if, as here, the judge does sign a bill of exceptions in a misdemeanor case to an extraordinary motion for a new trial, he is bound to allow a supersedeas bond pending the bill of exceptions, which he signed, under the law enacted by the General Assembly (Ga. L. 1922, p. 51; Code, § 27-901). See Loomis v. Edwards, supra.
It follows that the mandamus nisi is made absolute.
Townsend and Carlisle, JJ., concur.