Dickson Et. Al v. The State Of Ga.

Decision Date28 February 1879
Citation62 Ga. 583
PartiesDickson et. al. v. The State of Georgia.
CourtGeorgia Supreme Court

* Criminal law. County Courts. Affidavit and warrant. Indictment. New trial. Certiorari. Before Judge Pottle. Han-cock County. At Chambers. November 16, 1878.

Preston and Irwin Dickson presented their petition for certiorari m iking, in substance, the following case:

On October 29, 1878, they were arraigned before the county court of Hancock county, on the charge of simple larceny. The affidavit upon which the warrant was based, was made by T. J. Warthen before the county judge, and simply alleged that "to the best of deponent's knowledge and belief, Sarah Dickson, Preston Dickson and Irwin Dickson, did commit the offens; of simple larceny in said county, on or about the 6th day of October, 1878, and deponent makes this affidavit that a warrant may issue for her arrest." *The warrant, issued by the county judge, directed the proper officer "to arrest the body of Sarah Dickson, Preston Dickson and Irwin Dickson, charged by T. J. Warthen with the offense of simple larceny, in said county, on or about the 6th day of October, 1878, against the laws of this state, and to bring him before me, or some other judicial officer, etc." The petitioners waived indictment and trial by jury. The written accusation commenced as follows:

"Georgia—Hancock County.

"The state of Georgia charges and accuses Sarah Dickson, Preston Dickson and Irwin Dickson, all persons of color, of said county, with the offense of simple larceny, etc."

The balance of the accusation, in proper language, charged the three defendants with the larceny in said county, on or about the sixth of October, 1878, of 1, 500 pounds of seed cotton, of the value of $35.00, the property of David Dickson. It referred to both the affidavit and warrant as the basis of the accusation.

At the conclusion of the testimony for the prosecution the petitioners moved that the warrant and accusation be quashed upon the following grounds:

1. Because the, accusation does not follow the warrant upon which it is founded.

2. Because it does not follow the affidavit and warrant.

3. Because neither the affidavit nor warrant sets forth the ownership of the property alleged to have been stolen, nor the person from whose possession it was taken.

4. Because the warrant and affidavit fail to disclose the nature and character of the offense with which the defendants are charged, to-wit: whether a felony or a misdemeanor.

5. Because the affidavit prays for the arrest of "her, " and the warrant directs the arresting officer to bring "him" before a judicial officer for investigation, hence defendants say that no valid accusation can stand based upon a warrant so defective.

6. Because the accusation alleges that "the state of *Georgia charges" the accused, instead of the prosecu tor, "is the Lame and behalf of the citizens of Georgia."

The motion was overruled.

Evidence for the defense was introduced. The court found the petitioners guilty. They moved in arrest of judgment upon the same grounds as are stated in the motion to quash. The court overruled the motion, and sentenced them to the chain-gang for twelve months.

Petitioners ask the writ of certiorari because the court erred in overruling each of the motions above stated, and because the finding of the court was without evidence to sustain it.

It is only necessary to state that there was abundant evidence to support the finding.

Judge Pottle refused to sanction the petition, and petitioners excepted.

J. T. Jordan; George F Pierce; Fred. H. Neary, for plaintiffs in error, cited 55 Ga., 330; 58 lb., 397; Code, secs. 299, 4714.

Seaborn Reese, solicitor-general, for the state, cited, by brief, Code, secs. 4715, 4716, 4629, 4639, 3587, et. seq.; 22 Ga. 75, 499.

BLECKLEY, Justice.

1. With the accused female we are not at present concerned. She demanded indictment by a grand jury, and her case stood over. The two males went to trial before the county judge, on an accusation framed by him under section 299 of the Code. In the midst of the trial, a motion was made to quash the accusation and the warrant; and after the finding of guilty, a motion was made in arrest of judgment. The grounds of these two motions were the same. One of the grounds was, that neither the affidavit nor warrant set forth the ownership of the property alleged to have been stolen, nor the person from whose possession *it was taken. Another was, that the warrant and the affidavit failed to disclose whether the larceny charged was a felony or a misdemeanor. The reference to the warrant as made in the accusation was surplusage. The affidavit was the real statutory basis of the proceeding, and after the prisoners were put on trial—on final trial for the offense, the warrant was no longer in the case. Any complaint of its defects, or any motion to quash it, was out of place and out of time. But the affidavit was material throughout.

The motion to quash the accusation was bad, in strict practice, for two reasons: the first of which is, that it comprehended the warrant as well as the accusation, and was thus too broad, the warrant having served its purpose, and being unnecessary to so advanced a stage of the proceedings; and the second is, that the court was not bound to entertain a motion to quash the accusation after the trial was entered upon and a part of the evidence heard. The time for such a motion was before the introduction of evidence. There was no explanation of the delay to make it, and without some satisfactory explanation en that head, the count could well and properly have declined to hear it. The motion in arrest of judgment was, however, presented in due order, and if the affidavit was radically and substantially defective, the judgment should have been arrested. The affidavit must consequently be tried by the law. Section 4715 of the Code reads thus:

"An affidavit substantially complying with the following form shall in all cases be deemed sufficient. "Georgia, —county:

''Personally came A. B. who on oath saith, that, to the best of his knowledge, C. D. did, on the—day of—, in the year—, in the county aforesaid, commit the offense of—; and this deponent makes this affidavit that a warrant may issue for his arrest. Sworn to and subscribed before me this—day of—, 18.

—, J. P."

The next section lays down a form of warrant, equally general, and declares that this form may be used, and that *a substantial compliance with it shall be deemed sufficient. We have thus, from these two sections, the requisites of an affidavit to obtain a warrant, and of the warrant itself, when the officer acting is a...

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24 cases
  • Brown v. State, 33089
    • United States
    • Georgia Court of Appeals
    • 30 d4 Novembro d4 1950
    ...not to be confused with the affidavit which forms the basis of the accusation in many of our city courts. Flint v. State, supra; Dickson v. State, 62 Ga. 583. The accusation provided for in Code, § 27-704 as the basis for the trial of misdemeanor cases in the superior courts is comparable t......
  • Nicholson v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 18 d2 Janeiro d2 1966
    ...* * ) and this deponent makes this affidavit that a warrant may issue for his arrest. A. B. * * *" § 27-104 1965 Supp. See also Dickson v. State, 1879, 62 Ga. 583. Here we think that what the officers knew at the time of the arrest would have been sufficient to obtain a warrant for burglary......
  • Rowles v. State, 54276
    • United States
    • Georgia Court of Appeals
    • 29 d4 Setembro d4 1977
    ...the large and general phraseology of the affidavit intends to impute to him. Murphy v. State, 119 Ga. 300, 46 S.E. 450 (1904); Dickson v. State, 62 Ga. 583, 588. ( b) The second facet of appellant's argument proceeds upon the theme that Count One, alleging criminal trespass, does not use th......
  • Smoot v. State
    • United States
    • Georgia Supreme Court
    • 18 d6 Julho d6 1925
    ...a crime can issue upon an affidavit in which the affiant swears to the best of his knowledge and belief. Penal Code, § 905; Dickson v. State, 62 Ga. 583; Franklin v. State, 85 Ga. 570, 11 S. E. 876; McAlpin v. Purse, 86 Ga. 271, 12 S. E. 412; Brown v. State, 109 Ga. 570, 34 S. E. 1031. We c......
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