Dunaway v. Gore , 1927 Ga. LEXIS 161 ( 1927 )

Russell, C. J.

M. M. Gore, upon being convicted of murder, was sentenced to be executed “by the warden of” the “penitentiary” of the State of Georgia, “by electrocution in private within the walls of said penitentiary at Milledgeville, Georgia.” The sentence was about to be executed by B. H. Dunaway as a .warden of the penitentiary. In .a petition by Gore for the writs of injunction and prohibition to prevent the execution of the sentence by Dunaway, it was alleged that Dunaway was superintendent of the penitentiary at Milledgeville but was not the warden of said penitentiary at Milledgeville, and that there was no warden at the penitentiary at Milledgeville, and consequently that Dun-away was without authority to execute the sentence of the court, and to allow him to do so “said petitioner Gore will be denied due process of law.” In connection with what is stated above, the petition contained the substance of certain resolutions of the board of-Prison Commissioners of Georgia and other documents, which showed that at the time in question B. H. Dunaway was superintendent of the State Prison Farm at Milledgeville and also warden of the male camp at said farm. It is provided in the act approved August 16, 1924 (Acts 1924, p. 195) : “Section 1. . . all persons convicted, after the passage of this act, of a capital crime and have imposed upon them the sentence of death, shall suffer such punishment by electrocution within the walls of the State Penitentiary, at Milledgeville, Georgia, or wherever the State Penitentiary may be located, instead of hanging. . . Section 4. . . there shall be present at such execution the warden of the penitentiary, who shall serve as executioner. . .” These provisions of the statute have been construed in Howell v. State, ante, 204 (138 S. E. 206), as referring to the State Prison Farm located near Milledgeville, and as conferring the authority expressed in section 4 of the act upon “any warden of said prison,” including “the superintendent of said prison who is the warden of the male camp of said penitentiary.” Under this construction of the law the execution of Gore by Dunaway would not deprive him of due process of law.

Paragraph ten of the petition alleges that the said act of 1924 is “unconstitutional,” because (a) “there is no legal machinery now in force in the State of Georgia . . to carry the sentence in this case into execution. There is no such person as the “warden of the penitentiary. . . The act contemplates the warden of the penitentiary of this State.. It does not by its language say that the wardens of the various departments have the authority to execute any condemned person. . .” (b) Because “the act strips the sheriff of the counties of Georgia of the authority to execute a condemned person, and it does not specially designate any official with the power to act with that authority.” The first of the foregoing grounds of attack is disposed of by the ruling in the first headnote. The second ground of attack is also without merit, there being no provision in the constitution conferring upon sheriffs of counties the power to execute the sentences of the court in capital cases. The manner of execution of such sentences in this State is for legislative enactment, as is the matter of defining the crime of murder and providing for its punishment.

Applying the foregoing rulings, the petition failed to allege a cause of action, and the judge erred in overruling the general demurrer to the petition.

The rulings announced in the preceding paragraphs apply also to the assignments of error in the bill of exceptions filed by Gore.

Assignments of error upon constitutional questions which are raised for the first time in the bill of exceptions will not be considered. Loftin v. Southern Securities Co., 162 Ga. 730 (134 S. E. 760); Puckett v. State Banking Co., 130 Ga. 586 (61 S. E. 465).

In the bill of exceptions filed by Gore error was also assigned upon the statement of the judge: “I hold that the act of 1924, substituting electrocution for hanging, is'constitutional and legal.” This language of the judge contained in his opinion was not a judgment upon which error could be assigned. Griffith v. Finger, 115 Ga. 592 (41 S. E. 993); Hendricks v. Jackson, 139 Ga. 604 (77 S. E. 816). And even if it announced an incorrect principle of law, it would not be a proper subject for review under this assignment of error.

The foregoing rulings result in a reversal of the judgment of the trial court overruling the general demurrer as complained of in the bill of exceptions filed by Dunaway, and in an affirmance of the judgment of the trial court on questions raised in the bill of exceptions filed by Gore, in so far as that bill of exceptions contains assignments of error sufficient to raise any question for decision by this court.

Judgment in Case No. 5810 reversed. Judgment in case No. 5811¡. affirmed.

All the Justices concur.