Candler v. Kirksey

Supreme Court of Georgia

Candler v. Kirksey

38 S.E. 825, 113 Ga. 309, 1901 Ga. LEXIS 240

CourtSupreme Court of Georgia

DecidedApril 25, 1901

StatusPublished

Cited by10 cases

This text of 38 S.E. 825 (Candler v. Kirksey) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Candler v. Kirksey, 38 S.E. 825, 113 Ga. 309, 1901 Ga. LEXIS 240 (Ga. 1901).

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Opinion

Fish, J.

This was a proceeding to forfeit a criminal recognizance. In defense to the scire facias, the sureties set up that the indictment against their principal was fatally defective; and counsel for the State practically conceded this to be true. The court below discharged the sureties, and this is the ruling of which complaint is made in the bill of exceptions. The question thus made has been settled by the decisions of this court, which we are now asked to review. In State v. Lockhart, 24 Ga. 420, in ruling upon the [310]*310point, the court said: “In Liceth et al. vs. Cobb, Governor, &c., 18 Ga. Rep. 314, this court held that the defendant was not bound to appear before indictment, . . and that it is good ground of demurrer to a sci. fa. that it was issued before indictment. If, then, the indictment in this case was fatally defective, not only not charging the defendant with the particular offense for which he was recognized to appear, but with none other, then the party stands unindicted to this time, and there has necessarily been no breach of his bond.” This decision was cited and approved in State v. Woodley, 25 Ga. 235, and in McDaniel v. Campbell, 78 Ga. 188. We think, as held in these cases, that an indictment which charges the principal in the recognizance with no offense against the State amounts to no indictment, and that the sureties may set up its invalidity in defense to a scire facias to forfeit the recognizance. We, therefore, upon a review of the cases above referred to, affirm the same. Judgment affirmed.

All the Justices concurring.

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Fish, J.

This was a proceeding to forfeit a criminal recognizance. In defense to the scire facias, the sureties set up that the indictment against their principal was fatally defective; and counsel for the State practically conceded this to be true. The court below discharged the sureties, and this is the ruling of which complaint is made in the bill of exceptions. The question thus made has been settled by the decisions of this court, which we are now asked to review. In State v. Lockhart, 24 Ga. 420, in ruling upon the [310]*310point, the court said: “In Liceth et al. vs. Cobb, Governor, &c., 18 Ga. Rep. 314, this court held that the defendant was not bound to appear before indictment, . . and that it is good ground of demurrer to a sci. fa. that it was issued before indictment. If, then, the indictment in this case was fatally defective, not only not charging the defendant with the particular offense for which he was recognized to appear, but with none other, then the party stands unindicted to this time, and there has necessarily been no breach of his bond.” This decision was cited and approved in State v. Woodley, 25 Ga. 235, and in McDaniel v. Campbell, 78 Ga. 188. We think, as held in these cases, that an indictment which charges the principal in the recognizance with no offense against the State amounts to no indictment, and that the sureties may set up its invalidity in defense to a scire facias to forfeit the recognizance. We, therefore, upon a review of the cases above referred to, affirm the same. Judgment affirmed.

All the Justices concurring.

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Bluebook (online)

38 S.E. 825, 113 Ga. 309, 1901 Ga. LEXIS 240, Counsel Stack Legal Research, https://law.counselstack.com/opinion/candler-v-kirksey-ga-1901.

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