Underwood v. State
| Decision Date | 15 May 1923 |
| Docket Number | 14303. |
| Citation | 117 S.E. 668,30 Ga.App. 257 |
| Parties | UNDERWOOD v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An affidavit signed by the prosecutor is not a condition precedent to an accusation in the city court of Miller county; the act creating that court having been so amended that defendants in criminal cases therein "may be tried on written accusations framed and signed by the solicitor of said court."
The grounds of the demurrer which attack the law on which the accusation was based were properly overruled because:
(a) A demurrer which attacks a law as unconstitutional must clearly, definitely, and distinctly point out and name the section of the Code, or the part thereof, or the part of the act of the Legislature, alleged to be unconstitutional.
(b) Where it is alleged in a demurrer that a law is unconstitutional, because it is repugnant to, contrary to, in conflict with, and in derogation of certain paragraphs of the Constitution, the demurrer must point out wherein or in what particular the law is repugnant to, contrary to, in conflict with, and in derogation of those paragraphs of the Constitution.
The sixth special ground of the motion for a new trial complains of certain remarks made by the judge "during the progress of the trial and in the presence of the jury," which are alleged to have been prejudicial to the cause of plaintiff in error. In Harrison v. State, 20 Ga.App 157 (6), 92 S.E. 970, this court held: "Prejudicial remarks of the court in the presence and hearing of the jury are not ground for a new trial, unless a motion to declare a mistrial on that ground has been made and refused." See also, 20 Ga.App. 160 (6), 92 S.E. 970; and Gilbert v State, 27 Ga.App. 604 (4), 605 (4), 109 S.E. 697; Perdue v. State, 135 Ga. 277 (1), 69 S.E. 184. There was no motion to declare a mistrial, and, the case having proceeded without objection to the remarks of the judge, no question as to the prejudicial nature of the remarks can be raised in the motion for a new trial.
None of the other special grounds of the motion for a new trial show any reason why a new trial should be granted, and there is evidence to support the verdict.
Error from City Court of Miller County; W. I. Geer, Judge.
W. C. Underwood was convicted of an offense, and he brings error. Affirmed.
Hartsfield & Conger, of Bainbridge, for plaintiff in error.
P. D. Rich, Sol., of Colquitt, for the State.
The accusation in this case charged the plaintiff in error with a violation of section 748 of the Penal Code of 1910. The accusation was demurred to, and after it was amended the demurrer was overruled, and exceptions pendente lite were filed. When the case was tried a verdict of guilty was rendered, a motion for a new trial was made and overruled, and the accused excepted.
The demurrer contained several grounds. One of these alleges that "the affidavit attached to the accusation does not charge any offense or crime under the laws of this state"; another, that "said accusation is not founded upon or based upon a warrant, nor is any warrant referred to or mentioned in said accusation"; another, that "said accusation is not signed by the prosecutor as provided by the act of the Legislature establishing the court of Miller county"; and three others seek to raise the question of the constitutionality of the section of the Penal Code under which the accusation was drawn.
1. We will discuss first those grounds which relate to the affidavit and the warrant. It is true that no "affidavit is attached to the accusation," no warrant is referred to therein, and the accusation is not signed by the prosecutor. None of these things are required by the act creating the city court of Miller county as amended by the Legislature in 1909. See Ga. Laws 1909, p. 276. Section 3 of the amending act struck from the original act (Ga. Laws 1908, p. 179) the provisions which required that an affidavit be made as the basis of the accusation, and that the accusation be signed by the prosecutor, and in lieu thereof provided that "defendants in criminal cases in said city court of Miller county may be tried on written accusations framed and signed by the solicitor of said court." From the above it will appear that these grounds of the demurrer are without merit.
2. This court has several times said that "a demurrer, being a critic, must itself be free from imperfection." The grounds of the demurrer which seek to raise the question of the constitutionality of the section of the Penal Code under which the accusation against plaintiff in error was drawn are not "free from imperfection": First, because the demurrer, in three separate grounds, alleges that "the law, statute and section of the Code" is unconstitutional, because it is "repugnant to, in conflict with, and in derogation of" each of three certain paragraphs of the Constitution, and then fails to designate the particular section of the law which it is alleged is in...
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