Dixon v. State

270 S.E.2d 192, 155 Ga. App. 17, 1980 Ga. App. LEXIS 2437

• Court: Court of Appeals of Georgia
• Decided: April 21, 1980
• Docket: 59257
• Status: Published

Opinions

Smith, Judge.

Appellant appeals her conviction for solicitation of sodomy. We reverse.

1. Appellant was brought to trial on an accusation for offering to perform an act of oral sex for money to an undercover police officer. The accusation recited that it was based on an affidavit set forth above on the same printed form.

Appellant demurred to the accusation on the grounds that the supporting affidavit was not dated and that the affiant-prosecutor did not personally swear to or subscribe the affidavit before the attesting judge. The State admitted that the affidavit had not been attested at the time it was filed with the clerk’s office but contended that it was amendable at any time prior to a plea being entered by the accused. Appellant assigns as error the trial court’s ruling that the affidavit had been properly amended.

Submitted January 17, 1980 Decided April 21, 1980 Rehearing denied June 19, 1980. James A. Elkins, Jr., for appellant. Robert Johnston, Solicitor, for appellee.

“[T]he law recognizes a distinction between civil and criminal cases, as to whether an affidavit which is the basis of the action may be amended. It seems to be uniformly held that as to civil cases, the affidavit [is] amendable . . . However, in criminal cases . . . the affidavit upon which an accusation is based is void unless the purported affidavit was in fact sworn to and the jurat signed at the time the affidavit was made . . . Since in a criminal case the accusation is void unless the oath is properly administered and this appears from the record, the whole proceeding, under the decision in [Scroggins v. State, 55 Ga. 380 (1875)], is a nullity.” Gilbert v. State, 17 Ga. App. 143, 145 (86 SE 415) (1915).

Furthermore, “ ‘ [w]here trial is had upon accusation founded on affidavit, there can be no conviction unless it appears that the offense was committed before the making of the affidavit charging its commission.’ (Emphasis supplied.) There was no evidence of the commission of the offense prior to the swearing of the affidavit... and this, under the rule in [Chambers v. State, 85 Ga. 220 (1) (11 SE 653) (1890)] [is] fatal to a conviction...” Brown v. State, 82 Ga. App. 673, 676 (62 SE2d 732) (1950).

2. The remaining enumerations of error are without merit.

Judgment reversed.

Quillian, P. J., and Shulman, J., concur. Banke, J., concurs in the judgment only. Birdsong, Carley and Sognier, JJ., concur specially. Deen, C. J., and McMurray, P. J., dissent.