McCain v. Smith

Citation144 S.E.2d 522,221 Ga. 353
Decision Date22 September 1965
Docket NumberNo. 23138,23138
PartiesJames A. McCAIN, Jr. v. Hoke H. SMITH, Warden.
CourtGeorgia Supreme Court

Syllabus by the Court

The accusation which sought to charge the appellant with an offense under Code Ann. § 13-9933 was void because it failed to allege scienter and intent to defraud. Since the appellant is being held by reason of his conviction on a void accusation, the trial court erred in refusing to grant his petition for habeas corpus.

Edward T. M. Garland, Reuben A. Garland, Jr., Atlanta, for plaintiff in error.

No appearance for defendant in error.

ALMAND, Justice.

This is an appeal from a judgment refusing to discharge the appellant from the custody of the appellee, Warden of Stone Mountain State Prison Branch, after a hearing on his petition for the writ of habeas corpus.

The record discloses that: appellant James A. McCain, Jr. on an accusation issued from the Civil and Criminal Court of DeKalb County plead guilty to the misdemeanor offense charged therein; on April 26, 1965 he received a sentence of 12 months to be served on probation, the conditions being that he would not 'violate any Federal or State penal statutes or municipal ordinances'. After a notice and hearing his service of the sentence on probation was revoked on May 19, 1965, and he is now in the custody of the respondent warden by virtue of the sentence of April 26, 1965.

The accusation under which the appellant was sentenced charged that he did on July 31, 1963, 'unlawfully, and with force and arms draw, tender and utter a certain bank check of the following tenor and effect, to wit: First National Bank of Atlanta Pay to the Order of the DeKalb-Chrysler-Plymouth Eighteen Hundred & Thirty-Six Dollars $1836.00 Dollars, signed James A. McCain and having drawn said check did thereby tender and obtain from DeKalb-Chrysler-Plymouth a certain lot of merchandise, and/or cash, he, the said James A. McCain not then and there having sufficient funds, in, or credit with, The First National Bank of Atlanta to pay said check upon presentation, contrary to the laws of said State, the peace, good order and dignity thereof.'

The accusation purports to charge an offense under Code Ann. §§ 13-9933 (Ga.L.1962, p. 593). That Code section in substance provides: 'Any person, who with intent to defraud, shall obtain any money, goods, or other property of value, or who shall pay any obligation for wages or salary, by making, drawing, uttering, or delivering any check, draft, or order for the payment of money on any bank or other depository, knowing at the time of such making, drawing, uttering or delivery that the maker of such check, draft, or order has either no funds or insufficient funds on deposit in or credit...

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7 cases
  • Smith v. Hardrick
    • United States
    • Georgia Supreme Court
    • December 4, 1995
    ...S.E.2d 361 (1986)).13 Williams v. State, 174 Ga.App. 506, 507, 330 S.E.2d 435 (1985) (emphasis in original). Accord McCain v. Smith, 221 Ga. 353, 354, 144 S.E.2d 522 (1965) ("a plea of guilty ... does not prevent the defendant from asserting that the facts alleged in the accusation do not c......
  • State v. Hammons, A01A1583.
    • United States
    • Georgia Court of Appeals
    • November 1, 2001
    ...amply documents, Hammons admitted having killed a man during a high-speed chase after he had been drinking. Compare McCain v. Smith, 221 Ga. 353, 354, 144 S.E.2d 522 (1965); see Williams, supra at 507, 330 S.E.2d 435. Since Hammons's motion was not meritorious, the trial court should have d......
  • DeFrancis v. Manning
    • United States
    • Georgia Supreme Court
    • September 9, 1980
    ...v. Cruikshank, 92 U.S. 542 at 556, 23 L.Ed. 588 (1875); United States v. Carll, 105 U.S. 611, 26 L.Ed. 1135 (1882); McCain v. Smith, 221 Ga. 353, 144 S.E.2d 522 (1965); Hilliard v. State, 87 Ga.App. 769, 75 S.E.2d 173 (1953); Walker v. United States, 342 F.2d 22 at 26-27 (5th Cir. The habea......
  • Wilson v. Reed
    • United States
    • Georgia Supreme Court
    • November 25, 1980 is also true that the defendant does not waive his right to claim that the indictment itself charges no crime. McCain v. Smith, 221 Ga. 353, 144 S.E.2d 522 (1965). A plea of guilty admits the facts set forth in an accusation or indictment; therefore, if those facts do not encompass all o......
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