Cone v. American Surety Co.

Hines, J.

In the above cases the Court of Appeals desires instructions from this court upon the question whether writs of error will lie from the city court of Thomasville to that court, because of the fact that neither in the act establishing the city court of Thomasville nor in any act amendatory thereof is it provided that in criminal eases the State can demand the trial of the defendants by a jury, or because of the fact that none of said acts provide for trial of defendants in criminal cases except on demand of the defendants, or because of the fact that said acts deny to the State the right in criminal cases to demand jury trials, or because of the fact that said acts provide that there shall be no jury trials in criminal cases unless demands are made therefor by the defendants, said acts in effect providing for a jury of 12 in all civil cases upon the demand of either party, and in all' criminal cases upon the demand of the defendants, and said court in all other respects coming up to the requirements of a constitutional city court.

After having recalled, on our own motion, previous decisions and after further consideration of this question, we have reached the conclusion that our former answer to the Court of Appeals, thereto was erroneous.

The act creating the city court of Cartersville (Ga. Laws, 1884-5, p. 487) contained this provision: “That the trial of all issues of fact in said court shall be by the court without a jury, except when either party in a civil case, or the defendant in a criminal case, shall in writing demand a trial by jury.” Under this act the State was not given the right to demand a jury in the trial of criminal cases, and all such cases were tried by the court without a jury, unless the defendant demanded a jury. This court held that a writ of error would lie to this court from the city court of Cartersville. W. & A. R. Co. v. Voils, 98 Ga. 446 (26 S. E. 483, 35 L. R. A. 655). The act creating the city court of Macon (Ga. Laws, 1884-5, p. 470) provided for the trial of all civil cases by a jury of 12, and for the trial of all criminal cases by a like number of jurors, unless the defendant waived trial by jury, in which event the judge of that court tried the case without a jury. It will be seen that the State was not entitled to demand a jury trial when it was waived by the defendant. This court held that the city court of Macon was a like court to the city court of Atlanta, and that writs of error would lie from the former court to this court. Ivey v. State, 112 Ga. 175 (37 S. E. 398); Ward v. State, 112 Ga. 192 (37 S. E. 400); Driver v. State, 112 Ga. 229 (37 S. E. 400).

In the case of Welborne v. State, 114 Ga. 793 (40 S. E. 857), this court, on its own motion, called in question its jurisdiction to entertain writs of error from the city courts of Atlanta, first and second divisions, Eichmond County, Savannah, Macon, Athens, the criminal court of Atlanta, the city courts of Moultrie, Bainbridge, Jefferson, Hall County, Floyd Comfiy, LaGrange, Americus, Waycross, Douglas, Baxley, and Brunswick. See page 796 of the opinion in that case for the cases in which the question of the jurisdiction of this court to hear writs of error from the city courts named was raised. The city court of Eichmond County was established by the act of Sept. 22, 1881 (Ga. Laws, 1880-1, p. 574). This act was amended by the act of Oct. 24, 1887 (Ga. Laws, 1887, p. 713). The city court of Macon was created by the act of Aug. 14, 1885 (Ga. Laws, 1884-5, p. 70), which was amended by the act of Dee. 11, 1900 (Ga. Laws, 1900, p. 144). It was probably on account of this amendment that this court, although it had previously passed upon the question as above shown, again considered the question of its jurisdiction to pass upon writs of error from this city court. The city court of Athens, under the name of the city court of Clarke County, was established by the act of Sept. 9, 1879 (Ga. Laws, 1878-9, p. 291). By the act of Dee. 18, 1894 (Ga. Laws, 1894, p. 212), the name of this court was changed from that of the city court of Clarke County to that of the city court of Athens. The city court of Moultrie was established by the act of Nov. 13, 1901 (Ga. Laws, 1901, p. 136). The city court of Bainbridge was created by the act of Nov. 27,. 1900 (Ga. Laws, 1900, p. 104). The city court of LaGrange was brought into existence by the act of Dec. 19, 1899 (Ga. Laws, 1899, p. 385). The city court of Jefferson was created by the act of Nov. 30, 1897 (Ga. Laws, 1897, p. 485). The city court of Hall County was established by the act of Aug. 14, 1891 (Ga. Laws, 1890-1, vol. II, p. 939). The city court of Floyd County was brought into existence by the act of Sept. 27, 1883 (.Ga. Laws, 1882-3, p. 535). The city court of Americus was established by the act of Nov. 22, 1900 (Ga. Laws, 1900, p. 93). Under this act this court was held not to be a constitutional city court, because it did not provide for the trial of civil and criminal cases by a jury of 12. Monford v. State, 114 Ga. 528 (40 S. E. 798). This was remedied by the act of Nov. 4, 1901 (Ga. Laws, 1901, p. 92). By reason of this amendment, this court again, in Welborne v. State, supra, passed upon its jurisdiction to hear writs of error from that court.. The city court of Wayeross was established ‘by the act of Dec. 11, 1897 (Ga. Laws, 1897, p. 510). The city court of Douglas was created by the act of Dec. 9, 1897 (Ga. Laws, 1897, p. 448). The city court of Baxley was established by the act of Dec. 1, 1897 (Ga. Laws, 1897, p. 420). The city court of Brunswick was created by the act of Dee. 9, 1895 (Ga. Laws, 1895, p. 374), which was amended, as to jury trials, by the act of Dec. 19, 1899 (Ga. Laws, 1899, p. 348).

It will appear from an inspection of the above acts establishing the city courts above referred to, with the possible exception of one in which the accused and the State were both entitled to jury trial, that provision was made for the trial of all civil cases in each of said' courts by a jury of 12, upon demand of either party; and for the trial of all criminal cases by a jury of the same number, upon demands for jury trial by defendants alone in criminal cases. In none of these acts was provision made for jury trials on demand by the State. With these provisions for jury trials, in the acts creating them, this court, in Welborne v. State, supra, held each of the above courts (excejDt the city court of Jefferson, on the ground that Jefferson was not a city: Lampkin v. Pike, 115 Ga. 827) to be a constitutional city court, and that writs of error would lie direct from them to this court. Brucker v. O’Connor, 115 Ga. 95 (41 S. E. 245); Travelers Protective Assn. v. Small, 115 Ga. 455 (41 S. E. 628); Maxwell v. Family Protective Union, 115 Ga. 475 (41 S. E. 552); McGehee v. State, 114 Ga. 833 (40 S. E. 1004); Gay v. State, 115 Ga. 204 (41 S. E. 685); Owen v. Palmour, 115 Ga. 683 (42 S. E. 53); Eastlick v. So. Ry. Co., 116 Ga. 48 (42 S. E. 499); Smith v. Zachry, 115 Ga. 722 (42 S. E. 102); Moon v. Potter, 115 Ga. 673 (42 S. E. 43); Jones v. Spence, 115 Ga. 794 (42 S. E. 94); So. Ry. Co. v. Overstreet, 115 Ga. 795 (42 S. E. 95); Com. Bk. of Jacksonville v. Flowers, 116 Ga. 219 (42 S. E. 474). These were the cases in which this court raised the question of its jurisdiction over writs of error from the named city courts, and, after having fully considered the question, retained the bills of exceptions and passed upon these causes, thus holding necessarily that said courts were constitutional city courts.

In the act creating the city court of Thomasville (Ga. Laws, 1905, p. 386), as amended by the act of 1907 (G-a. Laws, 1907, p. 239), provision is made for the trial by jury of all civil eases upon the demand of either party, and of criminal cases upon the demand of defendants, without any provision for trial of criminal cases by jury upon demand of the State. Under the decision in Welborne v. State, supra, construed in the light of the facts of that case, the city court of Thomasville is a constitutional city court from which writs of error lie direct to the Court of Appeals, notwithstanding the fact that there is no provision in said acts by which in criminal cases the State can demand the trial of defendants by a jury, notwithstanding the fact that none of said acts provide for trial by jury of defendants in criminal cases except upon demand of the defendants, and notwithstanding the fact that said acts deny to the State the right in criminal cases to demand jury trials, and notwithstanding the fact that said acts provide that there shall be no jury trials in criminal cases unless demands are made therefor by the defendants.

In the first headnote in Welborne v. State, it is asserted that to constitute a constitutional city court there must be a provision for “ a jury of 12 to try all cases, both civil and criminal, if a trial by jury is demanded.” This language is broad enough to cover a demand for trial by jury on the part of the State; but, when construed in connection with the acts which the court was considering, it must be confined to demands by parties in civil eases or by defendants in criminal cases.

In Ash v. Peoples Bank of Oliver, 149 Ga. 713 (101 S. E. 912), this court was considering the act creating the city court of Springfield. That act (Ga. Laws, 1908, p. 211) contains this provision: “Twelve jurors shall constitute a panel in said court; and in all cases in which a demand for a trial by jury has been made as herein mentioned, the selection shall be made as follows: In both civil and criminal cases, if the defendant elects, the entire twelve shall compose the jury; but if the defendant elects for the jury to be composed of but six jurors, 'then in civil cases the plaintiff and defendant shall have three strikes each, and in criminal, cases the defendant shall have four strikes and the State to have two strikes, and the remaining six jurors shall compose the jury.” It will thus appear that plaintiffs in civil cases are not given, under the act creating this court, the right of trial by 12 jurors, except when the defendants elect to try with the panel of 12 jurors; but are only given the right to trial by six jurors where the defendants do not so elect. This court held that the city court of Springfield was not a constitutional city court, for this reason. In delivering the opinion in that case, Presiding Justice Beck quoted with approval this language of Justice Cobb in Welborne v. State: “If an act creates a court which provides for a jury of twelve in all cases, or for such a jury upon demand in every case, and the court is located in a city which is the county-site, and has jurisdiction, territorial and otherwise, of the character above- indicated, such a court is undoubtedly a constitutional city court.” The language, “ or for such a jury upon demand in every ease,” as originally used and as applied in the construction of the act establishing the city court of Springfield, is broad enough to embrace the right of the State to demand a jury in criminal cases. If it is left to the defendant alone in a criminal case to demand a jury, and this right is denied to the State, it would seem that trial by “jury upon demand in every ease ” is not provided for. The trial by jury in criminal cases would be left to the defendant alone. But this language must be construed in the light of the facts of the cases in which it was used. In Kennedy v. Kicklighter, 150 Ga. 276 (103 S. E. 153), this court was dealing with the act of Aug. 16, 1915 (Ga. Laws, 1915, p. 117), amending the act creating the city court of Reidsville. That act provided for juries of 6 only in civil and criminal cases; and this court properly held that the Beidsville court was not a constitutional city court. It may not be amiss to remark that this trouble with the city court of Beidsville has been removed by the act of Aug. 15, 1921 (Ga. Laws, 1921, p. 383), which provides for a jury of 12 to try all civil and criminal cases, “ except that in any criminal case any defendant may waive trial by jury.”

Now, then, what are the essentials of a constitutional city court? They are these: 1. The court must be located, by the terms of the act establishing it, at a county-site which has been expressly declared to be a city by the act creating it. 2. It must have jurisdiction to try criminal cases below the grade of felony, and civil jurisdiction over a portion or all of those classes of cases jurisdiction over which is not by the constitution vested exclusively in some other court, with the territorial jurisdiction described in Welborne v. State, supra. 3. The act creating the court must provide for trial by a jury of 12, when demanded by either party in a civil case, or by the defendants in criminal cases, it not being essential that the State should have the right in criminal cases to trial by jury on demand; nor is the'constitutional character of such court destroyed by a provision for the trial of cases by the judge, without a jury, when a jury is not demanded by either party in civil cases or by the defendant in criminal cases.

We answer the question of the Court of Appeals- in the affirmative.

All the Justices concur.