Young v. State
| Decision Date | 09 June 1978 |
| Docket Number | No. 55777,55777 |
| Citation | 245 S.E.2d 866,146 Ga.App. 167 |
| Parties | YOUNG v. The STATE. |
| Court | Georgia Court of Appeals |
Wayne M. Purdom, Atlanta, for appellant.
John R. Thompson, Sol., William E. Mumford, Asst. Sol., for appellee.
The defendant was tried and convicted of abandonment of his minor child in the State Court of DeKalb County (formerly the Civil Court of DeKalb County). The evidence shows that he ceased paying child support under a divorce decree in December, 1976, after his wife's remarriage; that he signed a consent to adoption prepared by her lawyer in favor of her new husband and the adoption proceeding was filed in March or April; that the parties later separated, however, and the petition was dismissed in July, 1977; that nothing has been paid except for $100 paid since this suit was filed, although some funds have been paid into court in another pending garnishment action. The defense on the merits of the case contends that under these circumstances the defendant was justified in believing that the adoption proceeding had resulted in severance of his obligations. Held:
1. The evidence, although contradictory in some aspects, is sufficient to support a finding that the defendant was not misled into believing that his signature on a consent to adopt relieved him of his duties of support.
2. The defendant filed a notice to produce seeking to obtain from the state certain evidence properly in the possession of the prosecutrix or other third parties. State v. Haynie, 240 Ga. 866, 242 S.E.2d 713 (1978), overruling the Court of Appeals case in reliance on which the appellant acted, holds that while a motion to produce may be filed and served on the state, such a motion will not reach material which is not in the state's possession. Thus, a defendant in a criminal case cannot make the office of the solicitor or district attorney its agent in ferreting out evidence which it does not possess and which would constitute a search and seizure of third persons involved only as victims of the crime.
3. After conviction the defendant filed what is in effect a motion in arrest of judgment on the ground that the accusation preferred against him was void as not supported by an affidavit. Several cases have stated or assumed an affidavit is a necessary base for an accusation: Scroggins v. State, 55 Ga. 380 (1875); Smith v. State, 63 Ga. 168 (1) (1879); Flanders v. State, 9 Ga.App. 820 (1), 72 S.E. 286 (1911); Gilbert v. State, 17 Ga.App. 143, 86 S.E. 415 (1915); Chauncey v. State, 129 Ga.App. 207 (2), 199 S.E.2d 391 (1973); Rogers v. State, 133 Ga.App. 513, 211 S.E.2d 373 (1974); Martin v. State, 139 Ga.App. 8, 228 S.E.2d 15 (1976). We have examined these cases and find them correct on their facts in that they were either appealed from county or justice of the peace courts having local legislation which required that the accusation be based on an affidavit, or they were based on early Code sections since repealed, in particular § 299 of the Code of 1882 (and prior enactments) which allowed accusations framed by the county judge and based on affidavits where no indictment was demanded by the defendant. The Code of 1895 and subsequent Codes dropped this language. While most county courts still required that the accusation be based on an affidavit, certain enabling legislation in other Acts creating local courts eliminated this requirement, in which cases the affidavit was held not essential. See, e. g., Davis v. State, 11 Ga.App. 10 (3), 74 S.E. 442 (1912) (City Court of Savannah); Underwood v. State, 30 Ga.App. 257 (1), 117 S.E. 668 (1923) (City Court of Miller County); Maddox v. State, 145 Ga.App. 212, 243 S.E.2d 636 (1978) (State Court of Gwinnett County). The present case is from the State Court of DeKalb County (formerly the Civil Court), which provides that misdemeanor prosecutions shall be by written accusation based on affidavit but "the solicitor or assistant solicitor, in his discretion, may make such accusation and proceed to trial thereon without an affidavit as the basis therefor." Ga. L. 1956, pp. 3137, 3140. In Wright v. Davis, 120...
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Park v. State
...v. State, 268 Ga. 142, 145(8), 485 S.E.2d 767 (1997) (surgery to remove bullet from victim denied); see also Young v. State, 146 Ga.App. 167, 168(2), 245 S.E.2d 866 (1978) (obtaining evidence in possession of victims would constitute search and seizure).7 Collar v. State, 206 Ga.App. 448(1)......
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McSears v. State
...339(1), 231 S.E.2d 91 (1976), are inapposite because in those cases there were no affidavits at all. See also Young v. State, 146 Ga.App. 167(3), 245 S.E.2d 866 (1978). The case of Bickley v. State, 243 Ga. 488, 255 S.E.2d 31 (1979), did not involve the question of the sufficiency of the af......
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...for the simple reason that there [were] no procedures extant which would permit him to do so." Id. Subsequently, in Young v. State, 146 Ga.App. 167, 245 S.E.2d 866 (1978), the Court of Appeals of Georgia, citing Haynie, affirmed the trial court's rejection of the defendant's "notice to prod......
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Brown v. State, S–15–0264
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