Christopher v. State

• Citation: 94 S.E. 72,21 Ga.App. 244
• Decision Date: 02 November 1917
• Docket Number: 9136.
• Parties: CHRISTOPHER v. STATE.
• Court: Georgia Court of Appeals

94 S.E. 72

21 Ga.App. 244

CHRISTOPHER v. STATE.

No. 9136.

Court of Appeals of Georgia, Second Division

November 2, 1917

Syllabus by the Court.

The solicitor of the city court of Brunswick has the right to appoint an assistant solicitor. Laws Ga. 1907, p. 135. It is provided that accusations in that court shall be signed by the prosecutor and the prosecuting officer. Laws Ga. 1899 pp. 348, 349. The assistant solicitor has the power to sign such accusations, jointly with the prosecutor.

Even though the voluntary act of the solicitor of that court, in entering the government officer's training school, placed him in either of the conditions specified of ineligibility to office, still such a disqualification operates only from the time the fact "is ascertained and declared by the proper tribunal." Pol. Code 1910, § 264(4).

Hence the solicitor of the city court of Brunswick was a de facto officer until the fact of his disqualification should be "ascertained and declared by the proper tribunal," and his act in appointing an assistant solicitor during his temporary absence was valid, as the act of an officer de facto. Pol. Code 1910, § 258. The plea did not allege that his disqualification had been judicially determined. See Channell v. State, 109 Ga. 150, 34 S.E. 353.

The right of the solicitor of the city court to hold his office could not be brought in question by plea in abatement to an accusation drawn by him. The court could not be called upon in the same proceeding, to try both the right of the solicitor to his office and the guilt of the accused. Bush v. State, 10 Ga.App. 544, 73 S.E. 697.

Neither could the eligibility of the assistant solicitor, who was a United States commissioner for the Southern district of Georgia be brought in question by a plea in abatement to an accusation signed by him. Although "persons holding any office of profit or trust under the government" are declared ineligible, under section 258 (4) of Pol. Code 1910 still the same section provides that the acts of such persons are "valid as the act of an officer de facto." It is not necessary to decide whether the assistant solicitor was disqualified.

For the foregoing reasons, the judge of the city court properly sustained the demurrer to the plea.

Error from City Court of Brunswick; D. W. Krauss, Judge.

Maude Christopher was prosecuted in the city court of Brunswick. A demurrer to her plea was sustained, and she brings...