Blassingame v. State
| Decision Date | 11 May 1906 |
| Citation | 125 Ga. 293,54 S.E. 180 |
| Parties | BLASSINGAME. v. STATE. |
| Court | Georgia Supreme Court |
Criminal Law — Certiorari to County Court—Affidavit.
The filing of the affidavit provided for in Pen. Code 1895, § 765, that the accused had not had a fair trial and has been wrongfully and illegally convicted, is a condition precedent to the sanction of a petition for certiorari from a judgment of conviction in a county court. A failure to comply with this statutory requirement is not cured by the sanctioning of the petition or by the answer of the county judge; and, because of a failure to file the statutory affidavit, the case will be dismissed.
[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2707.]
(Syllabus by the Court.)
Error from Superior Court, Morgan County; H. G. Lewis, Judge.
Will Blassingame was convicted of a misdemeanor, and brought certiorari. From an order dismissing the same, and refusing to reinstate it, he brings error. Affirmed.
M. C. Few, for plaintiff in error.
Joseph E. Pottle, Sol. Gen., and E. W. Butler, for the State.
EVANS, J. Plaintiff in error was convicted of a misdemeanor in the county court of Morgan county, and sued out a writ of certiorari to the superior court The averments in the petition for certiorari were duly verified, but the plaintiff in certiorari entirely omitted to make the affidavit provided for in Pen. Code 1895, § 705, stating that he had not a fair trial and had been wrongfully and illegally convicted. The petition for certiorari was duly sanctioned, and it was answered by the county judge. On the call of the case in the superior court, the certiorari was dismissed for "want of sufficient verification." Subsequently, and at the same term, the plaintiff in error moved to reinstate the case on the ground that it affirmatively appeared that the writ of certiorari had issued and had been answered by the county judge. The court refused to reinstate the petition, and error is assigned upon the action of the court in dismissingthe certiorari case and refusing to reinstate the same.
A petition for certiorari from a county court to the superior court in a criminal case must be verified by an affidavit as to the truth of the averments of the petition. Pen. Code 1895, § 763. In addition to the verification provided for in this section, the applicant for certiorari must further file his affidavit stating that he has not had a fair trial, and has been wrongfully and illegally convicted. Pen. Code 1895, § 765. Where the recitals of fact set forth in the petition are not verified, it is too late, after an answer which fully supports and corroborates the allegations of fact has been made, to dismiss the certiorari because of lack of verification. Taylor v. State, 118 Ga. 50, 44 S. E. 834; Willims v. Mangum, 119 Ga. 628, 46 S. E. 835. These cases hold that upon the coming in of the answer, fully supporting and corroborating the averments...
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Johnston v. State
... ... An affidavit ... that he is unable by reason of his poverty to pay the costs ... is not equivalent to an affidavit of his inability to give ... the prescribed bond. Johnston v. State, 7 Ga.App ... --, 66 S.E. 554; Brown v. State, 124 Ga. 411, ... 52 S.E. 745; Blassingame v. State, 125 Ga. 293, 54 ... S.E. 180 ... Error ... from Superior Court, Liberty County; P. E. Seabrook, Judge ... Freeman ... Johnston was convicted of crime, and on the refusal of the ... writ of certiorari, brings error. Affirmed ... ...
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Cook v. State
...answer by the county judge, and failure to comply with the requirement of the statute works a dismissal of the petition. Blassingame v. State, 125 Ga. 293, 54 S.E. 180; Grant v. State, 126 Ga. 588, 55 S.E. 471; v. State, 127 Ga. 349, 56 S.E. 409; Farley v. State, 12 Ga.App. 643, 77 S.E. 113......