Brown v. State
| Decision Date | 04 May 1915 |
| Docket Number | 6270. |
| Citation | 85 S.E. 262,16 Ga.App. 268 |
| Parties | BROWN v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
The act establishing the city court of St. Marys (Acts 1908, p. 227 et seq.) provides that defendants in criminal cases may be tried in that court on written accusations setting forth plainly the offense charged, founded on an affidavit made by the prosecutor before the judge of that court or some other officer authorized to issue warrants. It did not affirmatively appear in this case that the accusation was founded upon such an affidavit.
An accusation in a city court must be founded upon an affidavit definitely charging some offense against the law, and the proof offered must conform to the affidavit, as well as to the accusation resting thereon. "The accusation must follow the affidavit, and the proof must follow and conform to both." Shealey v. State, 16 Ga.App. 191, 84 S.E. 839.
An indictment or accusation charging one with a violation of section 226 of the Penal Code of 1910, which penalizes the cutting or removing of timber or tanbark from uninclosed lands under certain conditions, should set out in whom the ownership of the lands, either partial or complete, is vested, as the statutory offense is in the nature of a trespass.
Where a constitutional question is raised, but its solution is not necessary to the determination of the case under consideration, the question will not be certified to the Supreme Court by this court.
The court erred in overruling the demurrer to the accusation.
Error from City Court of St. Marys; Emmett McElreath, Judge.
E. A Brown was convicted of a misdemeanor, and brings error. Reversed.
R. D Meader, of Brunswick, for plaintiff in error.
S. C Townsend, Sol., of St. Marys, and J. H. Thomas, Sol. Gen., of Jesup, for the State.
The defendant interposed a demurrer to the accusation, on the ground that section 226 of the Penal Code of 1910 was null and void, because violative of the Constitution of the state of Georgia, and opposed to sound public policy; and upon the further ground that no affidavit as prescribed by law was filed in the city court of St. Marys, as a basis for the said accusation, at or before the filing of the accusation, and no warrant issued upon such affidavit was or had been filed in the said court, and it was not alleged in the said accusation who was the owner of the lands which the defendant entered.
It is unnecessary to certify to the Supreme Court a question raised as to the constitutionality of section 226, supra; since, under the view we take of the case, a decision as to the constitutionality of the statute referred to is not necessary to a determination of the case under consideration (Civil Code, § 6506); nor can we certify, consider, or determine whether or not this statute is opposed to sound public policy.
The act of 1908 establishing the city court of St. Marys (Acts of 1908, p. 227 et seq.) provides, in section 28 thereof:
From the record in this case it appears that the accusation under which the defendant was tried recites that it is based "upon the affidavit of S. T. Hanks" (the prosecutor), but it does not affirmatively appear when the prosecutor made the affidavit upon which the accusation was based, nor does it appear that the affidavit so made by Hanks which is referred to in the accusation was made before an officer "authorized to issue warrants," or that it was then of file in the said court, or, in fact, had ever been filed therein prior to the time of the trial. The judgment of the court, sitting as a jury, finding against a plea in abatement based upon this ground, which was also a ground of the demurrer (that the accusation was void because no affidavit made by the prosecutor as the basis for the accusation in the case had been filed in the case in said court, or was filed in said court at or...
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