Oliver v. State

• Decision Date: 20 April 1925
• Docket Number: 4703.
• Citation: 127 S.E. 732,160 Ga. 365
• Parties: OLIVER v. STATE.
• Court: Georgia Supreme Court

127 S.E. 732

160 Ga. 365

OLIVER v. STATE.

No. 4703.

Supreme Court of Georgia

April 20, 1925

Syllabus by the Court.

"In order to relieve the plaintiff in error from the payment of costs in this court, it is necessary that a proper pauper affidavit shall be filed with the clerk of the trial court before the bill of exceptions and transcript of the record are transmitted to this court. No excuse will avail in case of failure to file the pauper affidavit before this time, and under no circumstances is this court authorized to receive the affidavit upon the call of the case here." Smith v. State, 117 Ga. 16(1), 43 S.E. 440; Civil Code 1910, § 6233.

A pauper's affidavit as referred to in the preceding note "to be effectual, must assert that the plaintiff in error is, because of his poverty, unable to pay the costs and must not add conjunctively that he is unable to do anything else." Civil Code 1910, § 6232. See, also Harris v. Harrold, 74 Ga. 410.

(a) While there is no provision of law for giving security "for the eventual condemnation money" in a criminal case, yet to add the words quoted, conjunctively with the statement "unable to pay the costs," in a pauper's affidavit under the Civil Code 1910, § 6232, is prohibited by the provision against the inclusion of "anything else," as employed in the Code section.

(b) Accordingly, on exception to a judgment refusing a new trial in a criminal case, a pauper's affidavit, which asserts that the plaintiff in error, because of his poverty, is unable "to pay the costs and give the security for the eventual condemnation money in said case," is insufficient to relieve the plaintiff in error from paying the costs of court.

On the trial of one indicted for the offense of rape, where the evidence showed that a rape had been actually committed, and there was nothing to indicate the perpetration of an assault not included in the crime of rape, it was not error for the judge to omit from his charge any instruction as to the law relating to the offense of a bare assault (Nichols v State, 72 Ga. 191), or the offense of an assault with intent to commit a rape. Canida v. State, 130 Ga 15, 60 S.E. 104.

The ground of the motion for new trial, complaining of the omission to charge "that, if there was no fear and intimidation (as the defendant's statement makes manifest), and that consent was had even by force, it would not be rape," is not meritorious.

The ground of the motion for a new trial, complaining of the omission to charge "upon the law as governing the difference [in] races," so that the jury might consider as a circumstance the difference in the races of the...