Hohenstein v. State

• Decision Date: 17 August 1906
• Citation: 55 S.E. 238,126 Ga. 536
• Parties: HOHENSTEIN . v. STATE.
• Court: Georgia Supreme Court

55 S.E. 238

126 Ga. 536

HOHENSTEIN .

v.STATE.

Supreme Court of Georgia.

Aug. 17, 1906.

Justices of the Peace—Criminal Responsibility—Malpractice—Indictment.

An indictment against a notary public and ex officio justice of the peace for the offense of malpractice in office, which charged that the defendant did issue a warrant for the arrest of A. B., "said warrant having been willfully and knowingly issued as aforesaid, not in good faith and for the purpose of inaugurating a criminal prosecution, hut corruptly and for the sole purpose of affording the [defendant], as magistrate as aforesaid, the opportunity for pecuniary consideration of drawing up the bond of said person so arrested as aforesaid, and;thus extorting money out of said person, contrary to the laws of said state, " was open to attack by general demurrer; there being a local act, in the county in which the accused held office and committed the alleged criminal acts, allowing justices of the peace a fee for "drawing up a bond and approving the same, " and there being no averments in the indictment that the warrant was not found upon a proper affidavit, or that the defendant colluded with the party making the affidavit, or that bond was improperly required. And the court erred in overruling the demurrer to the indictment. See, Pen. Code 1S95, §§ 292, 298; Hawkins v. State. 54 Ga. 653; State v. Zachary, 44 N. C. 432. (Syllabus by the Court.)

Error from Superior Court, Chatham County; Geo. T. Cann, Judge.

Charles V*. Hohenstein was convicted of a crime, and brings error. Reversed.

Garrard & Meldrim and C. V. Hohenstein, for plaintiff In error.

W. W. Osborne, Sol. Gen., and Dan'l. J. Charlton, for the State.

BECK, J. Judgment reversed. All the Justices concur, except FISH, C. J., absent.