Hogan v. State

56 S.E. 409, 127 Ga. 349, 1907 Ga. LEXIS 259

Opinion

Cobb, P. J.

1. “The filing of the affidavit provided for in the Penal Code, § 765, that the accused has not had a fair trial, and has been wrongfully and illegally convicted, is a condition precedent to the sanction, of a petition for certiorari from a judgment of conviction in a county court. A failure to comply with this statutory requirement is not cured by the sanctioning of the petition or by the answer of the county judge; and, because of a failure to file the statutory affidavit, the ease will be dismissed.” Blassingame v. State, 125 Ga. 293; Grant v. State, 126 Ga. 588.

2. In the present case the affidavit of the applicant for the writ of certiorari being fatally defective in the above-indicated particulars, the judge of the superior court properly dismissed the certiorari, at the hearing, for this reason.

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.