Hohenstein v. State

55 S.E. 238, 126 Ga. 536, 1906 Ga. LEXIS 435

Opinion

Beck, J.

An indictment against a notary public and ex-officio justice of the peace for the offense of malpractice in office, which charged that the defendant did issue a warrant for the arrest of A. B., “said wax-rant having been wilfully and knowingly issued as aforesaid, not in good faith and for the pui-pose of inaugurating a criminal prosecution, but ■corruptly and for the sole purpose of affording the [defendant], as magistrate as aforesaid, the opportunity for pecuniary consideration of ■drawing up the bond of said person so arrested, as aforesaid, and thus ■extorting money out of said pei-son, eonti-ary to the laws of said State,”

was open to attack by general demurrer, there being a local act, in the county in which the accused held office and committed the alleged erimi-| nal acts, allowing justices of the peace a fee for “drawing up a bond! and approving the same,” and there being no averment in the indiet-J ment that the warrant was not founded upon a proper affidavit, or that¡ the defendant colluded with the pai-ty making the affidavit, or that bond was improperly required. Penal Code, §§ 292, 298; Hawkins v. State, 54 Ga. 653; State v. Zachary, Bush L. (N. C.) 432.

Judgment reversed.

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