Castleberry v. State , 68 Ga. 49 ( 1881 )

Jackson, Chief Justice.

1. The only question necessary to the final disposition of this case is, whether under the laws of this state an attorney is empowered to act as judg& pro hac vice in a criminal case, the state and the accused both consenting thereto. Prior to the constitution of 1877, and the act of 1879, there might have been some doubt, and possibly jurisdiction was given by the act of i860, in criminal as in other cases, from the broad language of that act. See Code, §250, acts of i860, page 43.

There was a divided court on the constitutionality of this act, even in civil cases — 39 Ga., 361 — but the majority upheld the validity of the act, and that decision has been repeatedly considered as law by this court subsequently. Nevertheless, by the constitution of 1877, ar_ tide 6, section 4, paragraph 9, appendix to Code, §626, express power is given to the general assembly to provide by law for the appointment of some person to act as judge where the judge of the superior courts is disqualified. That paragraph is in these words : “The general assembly may provide by law for the appointment of some proper person to preside in cases where the presiding judge is from any cause disqualified,” and by virtue of the authority therein conferred, the general assembly did provide by law for such cases, and confined the-operation of the act to civil cases. Acts of 1878-9, page 28.

Whatever may have been the law prior to the constitution of 1877, and the act of 1879, we are quite clear-that since that act went into effect, the act of i860, and the provision of the Code on the subject taken from that act were modified, if ever operating so widely, to the extent of confining the appointment of judges pro hac vice to civil cases.

Therefore, the plaintiff in error was illegally convicted before the tribunal which undertook to try him, notwithstanding his consent, and the cause must be remanded for a new trial.

2. A motion was made to dismiss the.writ of error on the ground that the person undertaking to act as judge had no power to certify to the bill of exceptions, but under the ruling at the last term in the case of Worsham vs. Murchison, the effect of the want of jurisdiction in such cases is not to dismiss the writ of error but to reverse the judgment for want of jurisdiction in. the court which rendered it.

Judgment reversed.