Byrd v. State

• Decision Date: 25 September 1945
• Docket Number: 30894.
• Citation: 35 S.E.2d 385,72 Ga.App. 840
• Parties: BYRD v. STATE.
• Court: Georgia Court of Appeals

35 S.E.2d 385

72 Ga.App. 840

BYRD v. STATE.

No. 30894.

Court of Appeals of Georgia, Division No. 1.

September 25, 1945

Syllabus by the court.

1. The overruling of the plea in abatement was not error.

2. The refusal to declare a mistrial was reversible error.

Pratt Byrd was tried in the city court of Reidsville on the following accusation: 'Georgia Tattnall County. W. J. Sikes, in the name and behalf of the citizens of Georgia, charges and accuses Pratt Byrd with the offense of a misdemeanor, for that the said Pratt Byrd, on the 25 day of July, 1944, in the county aforesaid, then and there unlawfully and with force and arms, did keep, maintain employ and carry on a certain scheme and device for the hazarding of money or other valuable things, said scheme and device being known as a slot machine, contrary to the laws of the State, the order, peace and dignity thereof. This accusation is based upon the affidavit of W. J. Sikes made before S. M. McCall, clerk of C. C. of R., on the 31st day of July, 1944. R. L. Carr, solicitor; W. J. Sikes, prosecutor. Filed in office July 31, 1944, S.W. McCall, clerk.' The affidavit referred to was subscribed and sworn to by W. J Sikes before S.W. McCall, the clerk of the court, on July 31 1944.

The defendant filed a plea in abatement, on the ground that the accusation was null and void because it was not 'signed' by the solicitor of the city court, as required by the act of 1905, p. 335, creating the court, and that the mere typing of his name to the accusation was not a signing thereof within the meaning of the statute. The plea alleged further that 'said pretended accusation is not preferred by, nor is it a charge by, the solicitor of this court, but is an accusation made by W. J. Sikes, a private citizen, without any authority of law to prefer accusations in this court, for which reason this defendant says such pretended accusation is void.' The plea was overruled, and that ruling was excepted to pendente lite and assigned in the bill of exceptions as error.

The case proceeded to a verdict and judgment for the State, the defendant's motion for a new trial was denied, and that judgment is assigned as error.

T. Ross Sharpe, of Lyons, and P. M. Anderson, of Claxton, for plaintiff in error.

R. L. Carr, Sol. Gen., of Glennville, for defendant in error.

BROYLES, Chief Judge (after stating the foregoing facts).

1. In Hillman v. State, 67 Ga.App. 292, 20 S.E.2d 91, 92 headnote 1 reads: 'That the name of the solicitor on the accusation was printed instead of being signed was immaterial. The affidavit upon which the accusation was based was properly signed by the prosecutor and attested by the clerk of the superior court. The accusation itself was properly signed by the prosecutor and the name of the solicitor was printed thereon. This was sufficient.' If the printed name of the solicitor was sufficient in that case, the typed name of the solicitor was sufficient in this case, and was equivalent to a 'signing' within the meaning of the statute. And in Flanders v. State, 9 Ga.App. 820, on page 822, 72 S.E. 286, 287, the court said: 'We are of the opinion that an accusation in the city court of Bainbridge is sufficient where it is signed by the prosecuting officer of the court and is based on an affidavit, whether the name of the solicitor or the name of the maker of the affidavit is formally employed to designate the accuser who 'in the name and behalf of the citizens of Georgia' charges the accused with the offense set out in the accusation. Either form may be adopted. Since the affidavit of the prosecutor is made a substitute for the formal finding of the grand jury as to these misdemeanors, it is perhaps the better practice to follow the form adopted in the present case.' Cook v. Walker, 161 Ga. 551, 131 S.E. 288, cited by counsel for the plaintiff in error, is distinguished from this case, in that there the name of the solicitor was not placed upon the accusation, either in writing, printing,...