Howard v. State

Court of Appeals of Georgia

Howard v. State

116 S.E. 548, 30 Ga. App. 62, 1923 Ga. App. LEXIS 253

CourtCourt of Appeals of Georgia

DecidedMarch 7, 1923

Docket14144

StatusPublished

This text of 116 S.E. 548 (Howard v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Howard v. State, 116 S.E. 548, 30 Ga. App. 62, 1923 Ga. App. LEXIS 253 (Ga. Ct. App. 1923).

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Opinion

Broyles, O. J.

1. The ruling in Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1 (90 S. E. 970), that a petition for certiorari to review the judgment of a police or recorder’s court should be dismissed unless there [63]*63be attached to the petition a certified copy of the certiorari bond and a certificate from the clerk of the trial court that the bond was filed and approved by him, does not apply to a certiorari from the criminal court of Atlanta. One convicted in that court of a criminal offense, who desires to have the judgment reviewed by certiorari, is not obligated to give any bond. Dixon v. State, 121 Ga. 346 (49 S. E. 311), and citations; Malone v. State, 27 Ga. App. 53 (1). See also, in this connection, Hood v. State, 4 Ga. App. 847 (62 S. E. 570); Welborne v. State, 114 Ga. 815 (40 S. E. 857); Laws v. State, 15 Ga. App. 361 (83 S. E. 279).

Decided March 7, 1923.

Certiorari; from Fulton superior court — ; Judge Bell. October 27, 1922.

Morrow & Morrow, for plaintiff in error. John A. Boykin, solicitor-general, Boy Dorsey, solicitor, E. A. Stephens, contra.

2. While it is true that where a criminal case is tried in an inferior judicatory and carried to the superior court by certiorari, a copy of the aeeusatioii should be attached to the petition for certiorari or incorporated in the answer of the trial judge, yet where this is not done, and no question as to 'the' sufficiency of the accusation is raised in the petition for certiorari, the judge of the superior court should not dismiss the certiorari, if any of the errors complained of in the petition and verified by the answer can be determined without reference to the accusation. Georgia Southern & Florida Ry. Go. v. State, 116 Ga. 845 (2) (43 S. E. 254); Sisk v. Anderson Phosphate & Oil Co., 9 Ga. App. 483 (1) (71 S. E. 763).

3. Under the above rulings the judge of the superior court erred in dismissing the certiorari on the ground that no copy of the certiorari bond, or certificate of the clerk of the trial court, or copy of the accusation, was attached to the petition for certiorari.

Judgment reversed.

Luhe and Bloodworth, J.J., concur.

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Broyles, O. J.

1. The ruling in Gillespie v. Mayor &c. of Macon, 19 Ga. App. 1 (90 S. E. 970), that a petition for certiorari to review the judgment of a police or recorder’s court should be dismissed unless there [63]*63be attached to the petition a certified copy of the certiorari bond and a certificate from the clerk of the trial court that the bond was filed and approved by him, does not apply to a certiorari from the criminal court of Atlanta. One convicted in that court of a criminal offense, who desires to have the judgment reviewed by certiorari, is not obligated to give any bond. Dixon v. State, 121 Ga. 346 (49 S. E. 311), and citations; Malone v. State, 27 Ga. App. 53 (1). See also, in this connection, Hood v. State, 4 Ga. App. 847 (62 S. E. 570); Welborne v. State, 114 Ga. 815 (40 S. E. 857); Laws v. State, 15 Ga. App. 361 (83 S. E. 279).

Decided March 7, 1923.

Certiorari; from Fulton superior court — ; Judge Bell. October 27, 1922.

Morrow & Morrow, for plaintiff in error. John A. Boykin, solicitor-general, Boy Dorsey, solicitor, E. A. Stephens, contra.

2. While it is true that where a criminal case is tried in an inferior judicatory and carried to the superior court by certiorari, a copy of the aeeusatioii should be attached to the petition for certiorari or incorporated in the answer of the trial judge, yet where this is not done, and no question as to 'the' sufficiency of the accusation is raised in the petition for certiorari, the judge of the superior court should not dismiss the certiorari, if any of the errors complained of in the petition and verified by the answer can be determined without reference to the accusation. Georgia Southern & Florida Ry. Go. v. State, 116 Ga. 845 (2) (43 S. E. 254); Sisk v. Anderson Phosphate & Oil Co., 9 Ga. App. 483 (1) (71 S. E. 763).

3. Under the above rulings the judge of the superior court erred in dismissing the certiorari on the ground that no copy of the certiorari bond, or certificate of the clerk of the trial court, or copy of the accusation, was attached to the petition for certiorari.

Judgment reversed.

Luhe and Bloodworth, J.J., concur.

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116 S.E. 548, 30 Ga. App. 62, 1923 Ga. App. LEXIS 253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-state-gactapp-1923.

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