Ronemous v. State

• Court: Georgia Court of Appeals
• Writing for the Court: Paul Webb, Solicitor-Gen., John I. Kelley, Solicitor; GARDNER
• Citation: Ronemous v. State, 87 Ga.App. 588, 74 S.E.2d 676 (Ga. App. 1953)
• Decision Date: 13 February 1953
• Docket Number: No. 34488,No. 2,34488,2
• Parties: RONEMOUS v. STATE

Page 676

74 S.E.2d 676

87 Ga.App. 588

RONEMOUS v. STATE.

No. 34488.

Court of Appeals of Georgia, Division No. 2.

Feb. 13, 1953.

Syllabus by the Court.

1. The petition for certiorari was not subject to dismissal because it was not affirmatively alleged therein that a bond had been made, and that a certified copy, together with the certificate of the clerk approving and accepting same, was attached thereto.

2. The alleged error based on the recharge of the court to the jury during the absence of the defendant and his counsel from the courthouse will not be considered, the judge in his answer to the certiorari not approving this assignment of error.

3. The evidence demanded a finding that the defendant was not guilty of an assault and battery on the police officer in resisting an illegal arrest, and the judge of the superior court erred in overruling the defendant's petition for certiorari.

On April 9, 1952, W.S. Ronemous was tried before Honorable Charles G. Bruce, Judge of the Criminal Court of Fulton County, and a jury, on an accusation charging him with assault and battery, to which the accused pleaded not guilty. The jury found the defendant guilty, and he was sentenced to twelve months on the public works of the county. The defendant applied to the Superior Court of Fulton County for the writ of certiorari. It appears from the evidence that two police officers went to the home of the defendant in the City of Atlanta, Fulton County, Georgia, on a call reporting that he was beating his wife. When these officers arrived on the scene, the defendant was partially undressed and had apparently been drinking, but was not then beating his wife. The officers testified that the defendant's wife informed them that the defendant had been beating her, and that she wished him arrested. She told them this in the presence of the defendant. The officers proceeded to arrest the defendant, without a warrant. Officer Tuggle testified: that he and his partner, officer Mueller, arrived at the defendant's home on December 31, 1951; that they found the defendant in a "drunken condition"; that his wife said he had been beating her and she wanted him locked up; that "my partner and I arrested him, carried him to the car by force, and when we put him in the car he continued to fight *** and he reached over and grabbed and tried to choke me"; that the defendant "reached over from the back seat of the car and grabbed me by the neck and he was still fighting all the time"; and that after they got him quieted down and were carrying him to the jail, the defendant "started on me again and reached over the back seat, grabbing me and choking me again." It appeared that this officer was driving the police car and the other officer was in the back with the defendant. On cross-examination officer Tuggle testified: "I found him in his home. He didn't have his shirt or his clothes on at the time ***. He resisted being arrested while we were there. He resisted our taking him to jail but he didn't hurt me. I took him to the station-house and locked him up." The other officer testified substantially the same. He stated: "He (the defendant) didn't commit any crime." A witness for the defendant testified that she was on the scene, and that the defendant was doing nothing when the officers came. She said, "I saw them put him in the car," and "he did not make any resistance at all that I saw *** they pushed him in."

In his certiorari the defendant assigned error generally, and also on the ground that the court recharged the jury during the absence of the defendant and his counsel. The trial judge overruled the defendant's certiorari, and to this judgment the defendant excepted.

James H. Dodgen, Atlanta, for plaintiff in error.

Paul Webb, Solicitor-Gen., John I. Kelley, Solicitor, J.E. Thrift and Charlie O. Murphy, Atlanta, for defendant in error.

GARDNER, Presiding Judge.

1. The solicitor urges that this petition for certiorari was properly overruled, in that it was subject to dismissal because it was not affirmatively alleged therein that the defendant had made a supersedeas bond as required under Code § 19-214, which had been approved and accepted by the clerk and the clerk had certified thereto, as provided in said statute, citing Skipper v. Mayor Brunswick, 29 Ga.App. 185, 114 S.E. 725, and Nilsen v. City of La Grange, 55 Ga.App. 676, 191 S.E. 175.

The defendant in his petition alleged that he had "complied with the law in such cases," and that he "attaches hereto a certified copy of the bond filed by him, duly certified by the Clerk of the Criminal Court of Fulton County"; and attached to the petition appears a certified copy of the bond and certificate of the clerk that the defendant had filed the bond required by law, and certifying that said bond was approved and accepted by him. In these circumstances, there was a substantial compliance with the law in regard to the petition for certiorari. The...