Mach v. State, No. 40544
| Court | United States Court of Appeals (Georgia) |
| Writing for the Court | HALL; NICHOLS, P. J., and RUSSELL |
| Citation | 109 Ga.App. 154,135 S.E.2d 467 |
| Parties | R. O. MACH v. The STATE |
| Decision Date | 14 February 1964 |
| Docket Number | No. 40544,No. 2 |
Page 467
v.
The STATE.
Page 468
Syllabus by the Court
1. (a) Assistant prosecuting officers, to the regular prosecuting officer, duly authorized by both the prosecutor and the court to assit the prosecutor in the discharge of his duties, are invested with the same rights and subject to the same restrictions with respect to appearing before the grand jury and participating in the proceedings before that body as the regular prosecuting officer.
(b) Failure of the court to require an attorney to be specially sworn to assist the solicitor general in this prosecution was not reversible error.
(c) The attorney's former employment by the governing body of a municipality within the county, as a special prosecutor to direct and counsel in investigation and prosecution of suspected[109 Ga.App. 155] criminal activities, did not disqualify him as an impartial and unbiased assistant prosecuting officer in the Superior Court of Thomas County, his former employment not having been by a conflicting interest, but by public officials representing the public interest and concerned with enforcement of the criminal law and subserving public justice.
2. Copies of records of a department of the Federal Government, certified as true and correct by the custodian of the original records and with a certificate by an official of the department showing the authority, incumbency, and genuineness of the signature of the certifying custodian, were properly authenticated and admissible in evidence.
3. Evidence that failed to connect the defendant with lottery operations during the period of time to which the indictment was expressly limited was not sufficient to support a conviction.
The grand jury of Thomas County returned a special indictment against the defendant in two counts for the offense of (1) selling lottery tickets, and (2) operating a lottery, between February 1 and February 28, 1963. The defendant filed a plea in abatement to the indictment upon grounds which are set forth in the opinion.
Page 469
The trial judge sustained the State's demurrer to the plea. Defendant was tried and convicted on both counts of the indictment. Error is assigned on sustaining of the demurrer to the plea and on the denial of the motion for new trial.M. Dale English, Adel, Garland T. Byrd, Butler, for plaintiff in error.
Bob Humphreys, Sol. Gen., Moultrie, Marcus B. Calhoun, Sol. Gen., pro tem., Thomasville, for defendant in error.
HALL, Judge.
1. (a) The defendant's plea in abatement recites that Solicitor General Humphreys filed a petition in the Thoams County Superior Court alleging that 'there is now pending * * * an unusual number of cases involving illegal dealings in whiskey and lottery violations * * * that because of this fact he desires to secure the appointment of a solicitor general pro tem. to assist him in handling of these violations before the [109 Ga.App. 156] grand jury and in the trial of these cases * * *' and praying that 'an order issue appointing Marcus B. Calhoun, attorney, as Solicitor General Pro Tem of the Thomas Superior Court' (Empahsis supplied); and that in response to this petition, the Judge of the Superior Court of Thomas County appointed Mr. Calhoun Solicitor General Pro Tem. of the Thomas Superior Court. The plea further alleges that Mr. Calhoun's appointment as Solicitor General Pro Tem. was illegal and void in view of the fact that the Solicitor General was not absent, indisposed or disqualified from interest or relationship to engage in the prosecution of these cases, and that after the appointment both Mr. Calhoun and the solicitor general attended the grand jury, advised them and swore and examined witnesses before them on this indictment; and that therefore his plea should be sustained and the indictment be quashed.
Code § 24-2913 authorizes the presiding judge to appoint a solicitor general pro tem. 'When a solicitor is absent or indisposed, or disqualified from interest or relationship to engage in a prosecution * * *.' The propriety of the appointment is largely in the discretion of the trial court and the appellate courts will not interfere with that discretion unless it is abused. 'When the appointment is made [the appointee] is an officer de facto for any official purpose, and his acts are legal, even if there be some error in the appointment.' Statham v. State, 41 Ga. 507(2), 512; Code § 102-102(6).
However, even if we assume that Mr. Calhoun could not have been a solicitor general pro tem. under Code § 24-2913, we do not agree with the contention made by the defendant's plea. It matters not what technical description of title is placed upon Mr. Calhoun's appointment, the court will look to the substance rather than the name. It is elementary that a misnomer does not prevail over substance. Waller v. Morris, 78 Ga.App. 821, 822, 52 S.E.2d 583; Southern Guaranty Ins. Co. v. Beasley, 106 Ga.App. 64, 65, 126 S.E.2d 260. Furthermore, the court's order of appointment must be construed in reference to the petition. Bentley v. Still, 198 Ga. 743, 746, 32 S.E.2d 814; Stanfield v. Downing Company, 186 Ga. 568(1), 199 S.E. 113. The solicitor general's petition sought the appointment of Mr. Calhoun 'to [109 Ga.App. 157] assit him' in handling pending whiskey and lottery violations before the grand jury and on trial because of the 'unusual number of cases' in the Thomas Superior Court. This is in fact what Mr. Calhoun did--assisted the solicitor general before the grand jury on this indictment and in the prosecution of the case. He did not 'act in his place.' The solicitor general was present and engaged in the performance of his duties both before the grand jury and in the prosecution of the case. It is obvious therefore that Mr. Calhoun was sought, appointed and engaged in the performance of acts which are consistent with the duties of an assistant solicitor general rather than a solicitor general pro tem.
Page 470
There is no statute of statewide application providing for the appointment of an assistant solicitor general. (For Acts authorizing the payment of compensation or appointment of various assistant solicitor generals in counties within a stated population bracket see the Editorial Note following...
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Scott v. State, No. A99A0204
...circumstances, they are not sufficient to convict the defendant. Rodgers v. State, 213 Ga. 797, 803, 102 S.E.2d 10; Mach v. State, 109 Ga.App. 154, 161, 135 S.E.2d 467; Hodges v. State, 103 Ga.App. 284, 118 S.E.2d 858. [238 Ga. App. 260] Williams v. State, 126 Ga.App. 350, 355, 190 S.E.2d 7......
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Colon v. State, No. A05A1125.
...result. --------------- Notes: 1. (Citation and punctuation omitted.) 487 U.S. 250, 256 (II), 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). 2. 109 Ga.App. 154, 158(1)(b), 135 S.E.2d 467 (1964), superseded by statute on other grounds, State v. Cook, 172 Ga.App. 433, 437-439(2)-(4), 323 S.E.2d 634 ......
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McDaniel v. Gangarosa, Nos. 47026 and 47027
...and the genuineness of the signature of the certifying custodian-as approved for records of the Federal Government. See Mach v. State, 109 Ga.App. 154, 160, 135 S.E.2d Such properly authenticated and certified records have been held admissible in evidence in this State under the above autho......
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State v. Ensor, No. 102
...Hinsdale County v. Crump, 18 Colo.App. 59, 60, 70 P. 159, 160 (1902); King v. State, 43 Fla. 211, 222, 31 So. 254 (1901); Mach v. State, 109 Ga.App. 154, 157, 135 S.E.2d 467 (1964); Latham v. Spencer, 244 Ind. 552, 557, 194 N.E.2d 606, 609 (1963); White v. Polk County, 17 Iowa 413, 414-15 (......
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Scott v. State, No. A99A0204
...circumstances, they are not sufficient to convict the defendant. Rodgers v. State, 213 Ga. 797, 803, 102 S.E.2d 10; Mach v. State, 109 Ga.App. 154, 161, 135 S.E.2d 467; Hodges v. State, 103 Ga.App. 284, 118 S.E.2d 858. [238 Ga. App. 260] Williams v. State, 126 Ga.App. 350, 355, 190 S.E.2d 7......
-
Colon v. State, No. A05A1125.
...result. --------------- Notes: 1. (Citation and punctuation omitted.) 487 U.S. 250, 256 (II), 108 S.Ct. 2369, 101 L.Ed.2d 228 (1988). 2. 109 Ga.App. 154, 158(1)(b), 135 S.E.2d 467 (1964), superseded by statute on other grounds, State v. Cook, 172 Ga.App. 433, 437-439(2)-(4), 323 S.E.2d 634 ......
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McDaniel v. Gangarosa, Nos. 47026 and 47027
...and the genuineness of the signature of the certifying custodian-as approved for records of the Federal Government. See Mach v. State, 109 Ga.App. 154, 160, 135 S.E.2d Such properly authenticated and certified records have been held admissible in evidence in this State under the above autho......
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State v. Ensor, No. 102
...Hinsdale County v. Crump, 18 Colo.App. 59, 60, 70 P. 159, 160 (1902); King v. State, 43 Fla. 211, 222, 31 So. 254 (1901); Mach v. State, 109 Ga.App. 154, 157, 135 S.E.2d 467 (1964); Latham v. Spencer, 244 Ind. 552, 557, 194 N.E.2d 606, 609 (1963); White v. Polk County, 17 Iowa 413, 414-15 (......