Hollingsworth v. State

• Decision Date: 09 November 1909
• Docket Number: 2,094.
• Citation: 65 S.E. 1077,7 Ga.App. 16
• Parties: HOLLINGSWORTH v. STATE.
• Court: Georgia Court of Appeals

65 S.E. 1077

7 Ga.App. 16

HOLLINGSWORTH v. STATE.

No. 2,094.

Court of Appeals of Georgia

November 9, 1909

Syllabus by the Court.

In a criminal case, where an exception is relied upon to prevent the bar of the statute of limitations, it must be alleged and proved. Such proof is inadmissible, unless the exception sought to be proved is alleged.

Where the exception necessary to relieve the bar of the statute of limitations is not alleged in the indictment or other accusation, it is to be presumed that the day upon which the offense is therefore alleged to have been committed is immaterial, and that the prosecution is not barred. Consequently any evidence that the offense charged was committed upon such a day as that a prosecution therefor would be barred is irrelevant and inadmissible, and should be excluded upon proper timely objection thereto.

A defendant in a criminal case may move in arrest of judgment upon his conviction, where it appears from the indictment that the alleged offense is barred by the statute of limitations and no exception to remove the bar is stated in the indictment. Still this right is not exclusive of the right of the defendant, at his option, to move for a new trial upon the ground that his conviction was the result of evidence illegally admitted over his objection.

Error from City Court of Fitzgerald; D. B. Jay, Judge.

Robert Hollingsworth was convicted of gaming, and brings error. Reversed.

Alex. J. McDonald and H. J. Quincey, for plaintiff in error.

O. H Elkins, Sol. pro tem., for the State.

RUSSELL J.

The defendant in the court below was tried upon an accusation charging him with the offense of misdemeanor. The accusation alleged that on the 25th day of April, 1906, he played and bet for money or other things of value at a game played with cards. The accusation was preferred on the 29th day of February, 1908. A motion for a continuance of his case was made upon the ground of the absence of material witnesses by whom he expected to prove that he was not engaged in the game of cards charged in the accusation. We think that, had we been presiding, we would have continued the case, because the evidence which the defendant swore he expected to be delivered by his absent witnesses was most material, and, if credible, would have demanded an acquittal. The matter of continuance, however, is largely within the discretion of the trial court, and the judgment refusing a new trial must be reversed upon another ground, and for that reason it is unnecessary that we pass upon the merits of the motion for continuance.

1. The state offered in evidence a bill of indictment against the defendant, returned by the grand jury of the superior court of Wilcox county, at the September term, 1906, charging that on the 25th day of April, 1906, he played and bet for money and other things of value at a game of poker, skin, or other game played with cards. Upon the indictment a nolle prosequi was entered, dated April 23, 1909. The defendant objected to the introduction of this testimony upon the ground that the former indictment was irrelevant and inadmissible, and did not illustrate any issue in the case. The judge overruled the objection of the defendant's counsel and admitted the indictment and the order entered thereon; and the defendant as plaintiff in error, excepts to the admission of this testimony. Upon the same line the court charged the jury that the case was originally brought in Wilcox county under an indictment found at the September term, 1906, of Wilcox superior court, and that upon the creation of the new county of Ben Hill "the indictment was transferred to this county, and was, upon motion of the solicitor of the city court of Fitzgerald, nol. pros'd, and a new accusation was drawn, upon which the defendant is being tried before you." To this charge various exceptions are taken, which it will be unnecessary to disclose.

Nothing is better settled than that the defendant has a right to be informed of at least enough of the charge against him to enable him to prepare for his defense, and while, as a general rule, the averment as to date in a criminal accusation is immaterial, still, if the day alleged fixes the offense at a time when it would be barred by the statute of limitations, the accusation is fatally...