Perry v. State

• Decision Date: 14 March 1940
• Docket Number: No. 27916.,27916.
• Citation: 8 S.E.2d 425
• Parties: PERRY. v. STATE.
• Court: Georgia Court of Appeals

8 S.E.2d 425

PERRY.

v.STATE.

No. 27916.

Court of Appeals of Georgia,

Division No. 1.

March 14, 1940.

Syllabus by the Court.

1. The accusation on which the defendant was convicted was so defective as to be absolutely void.

2. The questions raised by the motion in arrest of judgment have not become moot; and the court erred in overruling the motion.

Error from City Court of Americus; Jas. W. Smith, Judge.

Essie Perry was convicted of a misdemeanor, and he brings error.

Reversed.

R. L. LeSueur, of Americus, for plaintiff in error.

No appearance for defendant in error.

BROYLES, Chief Judge.

The accusation in this case contained two counts. Count one charged that the defendant was guilty of a misdemeanor, in that in Sumter County, Georgia, on October 8, 1938, he did unlawfully operate a Ford automobile "in such a manner as to endanger the life and limbs of Spencer Carter, in that he did drive and operate said automobile on the public highway known as the Bumphead road * * * in such a manner as to endanger the life, limbs and property of said Spencer Carter, due to the circumstances and conditions, striking and hitting the one-horse wagon in which said Spencer Carter was then and there riding, throwing the said Carter from said wagon and injuring his person and body and damaging the said wagon, contrary to the laws of said State." Count two charged the defendant "with the offense of a misdemeanor, for the said Essie Perry, on October 8, 1938, in the county aforesaid, did unlawfully, willfully and knowingly leave the scene of an accident which was caused by him, and in which accident damage was done to person and property, without stopping, or without giving his name and address, contrary to the laws of said State." A verdict of guilty on both counts was returned. The defendant was sentenced to hard labor on "the public works camp" for a term of eight months, but it was provided in the order of the judge that upon the payment of fifty dollars by the defendant and his complying with certain stated terms, the sentence could be served on parole outside of "the public works camp." The sentence was imposed on June 28, 1939; and, on that day, the fifty dollars fine was paid, and the defendant began the service of his parole sentence. On July 5, 1939, he was re-arrested and put in jail, and a petition was filed by the State charging him with the violation of certain terms of his parole sentence, and asking that his parole be revoked, and that he be required to serve the eight months sentence on the public works camp of the county. On July 6, 1939, and during the same term of court at which he was convicted, and while confined in jail, the defendant filed a motion in arrest of judgment, on the ground that the accusation on which he was convicted was void and set forth no offense against him. The court overruled the motion, and the defendant excepted to that ruling. The court also, after hearing evidence, revoked the defendant's parole sentence and ordered that he serve the sentence of eight months on the public works.

There are only two questions for determination: (1) Was the accusation void? And (2) if the accusation were void, did the fact that the defendant had paid the fine imposed on him and had served a few days of his parole sentence render "moot" the questions raised in his motion in arrest of judgment?

1. We think that the first question must be answered in the affirmative. The first count of the accusation is apparently drawn under section 68-301 of the Code which reads as follows: "Speed limit.—No person shall operate a motor vehicle upon any public street or highway at a speed greater than is reasonable and safe, having due regard for the width, grade, character, traffic, and common use of such street or highway, nor so as to endanger life or limb or property in any respect whatsoever; but said speed shall not exceed that tabulated below: " And then follows the tabulation of the forbidden speed "in miles per hour." The gist of that Code section is the operation of a motor vehicle on a public highway at an unlawful speed, ...