Hodges v. State
| Decision Date | 12 January 1959 |
| Docket Number | No. 20244,20244 |
| Citation | 214 Ga. 614,106 S.E.2d 795 |
| Parties | Margaret Josie HODGES v. STATE. |
| Court | Georgia Supreme Court |
James R. Venable, Marvin O'Neal, Jr., Atlanta, for plaintiff in error.
Paul Webb, Sol. Gen, John I. Kelley, Sol., Atlanta, for defendant in error.
Syllabus Opinion by the Court
This case is here on certiorari, assigning error upon the ruling of the Court of Appeals that 'The allegations of the first three counts of the accusation which charged offenses committed more than two years prior to the date of the accusation and which alleged a prior accusation, and that it was subsequently nol prossed, were sufficient as against the demurrers, * * * which attacked these counts as being barred by the statute of limitations,' Held :
1. Code § 27-601(4), which applies to accusations as well as indictments (Flint v. State, 12 Ga.App. 169, 172, 76 S.E. 1032), provides that indictments in all misdemeanors may be found within two years after the commission of the offense, and at no time thereafter, but that, if an indictment if found within the time limited, 'and for any informality' shall be quashed or a nolle prosequi entered, a new indictment may be found and prosecuted within six months from the time the first is quashed or the nolle prosequi entered. In Taylor v. State, 150 Ga. 331, 127 S.E. 652, in answer to a question certified by the Court of Appeals, this court held that, in order for a former indictment which has been nol prossed to toll the statute of limitations, the former must be a valid indictment. Hence, in order to prevent an indictment or accusation which shows on its face that it was returned more than two years after the commission of a known misdemeanor offense from being barred by the statute of limitations because returned within six months after the nolle prosequi of a former indictment returned within time, the second indictment or accusation must show that the former was not nol prossed because of a fatal defect therein, or because it was void, but that such nol pros was for an 'informality' or some other good reason which did not render it void. Such is the effect of the ruling of the Court of Appeals in Copeland v. State, 14 Ga.App. 109,80 S.E. 221, in which the second indictment was held to be barred where it alleged only that it was returned within six months from the date a former indictment timely returned was quashed on demurrer. In Cohen v. State, 2 Ga.App. 689, 692, 59 S.E. 4, it was held that the exception to prevent the bar of the statute of limitations must be set out in the indictment in the language used in the Penal Code. In Saunders v. State, 43 Ga.App. 59, 61, 158 S.E. 433, 435, it is held that it is sufficient if any of the exceptions to the bar of the statute of limitations stated in the Penal Code, § 30 (now Code § 27-601), be stated 'in the language therein employed.'
2. Counts 1, 2, and 3 of the accusation in the present case, entered on November 13, 1957, showed that the offenses therein charged were committed in 1952, more than two years prior to the filing of the accusation, and alleged only, as a bar to the statute of limitations, that 'this charge being originally filed in the form of an accusation in the Criminal Court of Fulton County on September 15, 1952, and subsequently being nol prossed on the 12th day of November, 1957...
To continue reading
Request your trial
-
Commonwealth v. Cardonick
... ... expressly so providing.' [ 16 ] 1 Wharton, Criminal ... Law and Procedure § 184 at 427--28 (Anderson ed. 1957); ... State v. Silver, 239 Or. 459, 460, 398 P.2d 178, 179 ... (1965); State v. Bilboa, 38 Idaho 92, 213 P. 1025, ... 222 P. 785 (1923); State v ... v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972); cf ... United States v. McCarthy, 445 F.2d 587 (7th Cir ... 1971); Hodges v. State, 214 Ga. 614, 615, 106 S.E.2d ... 795, 796 (1959); State v. Hundley, 272 N.C. 491, 158 ... S.E.2d 582 (1968) ... Statutes of ... ...
-
Com. v. Cardonick
...v. Fogel, 16 Ariz.App. 246, 492 P.2d 742 (1972); cf. United States v. McCarthy, 445 F.2d 587 (7th Cir. 1971); Hodges v. State, 214 Ga. 614, 615, 106 S.E.2d 795, 796 (1959); State v. Hundley, 272 N.C. 491, 158 S.E.2d 582 Statutes of limitations are of course liberally construed in favor of t......
-
State v. Strand
...to extend period; State v. Comstock, 205 Tenn. 389, 326 S.W.2d 669 (1959), tolling statute for defects must be pled; Hodges v. State, 214 Ga. 614, 106 S.E.2d 795 (1959), reason for abandoning original indictment required to be shown in new indictment. Yet other cases cited by defendant were......
-
Williams v. Mayor and Bd. of Aldermen of City of Atlanta
...38; Roddenberry v. State, 90 Ga.App. 66, 82 S.E.2d 40; Hodges v. State, 98 Ga.App. 97(7), 104 S.E.2d 704 (rev'd on other grounds, 214 Ga. 614, 106 S.E.2d 795; Staggers v. State, 101 Ga.App. 463, 465(5), 114 S.E.2d 142; McCray v. State of Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 82;......