Irvin v. State

188 S.E. 261, 54 Ga. App. 480, 1936 Ga. App. LEXIS 675

Opinion

Stephens, J.

1. When a person accused of a crime before a committing magistrate is discharged for want of sufficient cause of commitment, the cost of the proceeding is not assessed against the prosecutor as a matter of law, but it is discretionary with the magistrate to direct the cost to be paid by the prosecutor. Code, § 27-421; Gault v. Wallis, 53 Ga. 675; State v. Steele, 112 Ga. 39 (37 S. E. 174). It follows that where a criminal warrant is dismissed by a committing magistrate, a judgment entered by him that '“the accused is dismissed from custody, and judgment is rendered” for a named amount of dollars “cost of this proceeding for use of officers of court,” and where it nowhere appears from the judgment against whom it was issued, it can not be construed as necessarily one against the prosecutor.

2. The justice of the peace erred in overruling the prosecutor’s affidavit of illegality interposed to the levy of the execution against him issued on the judgment, in which it was alleged that the levy was illegal on the ground that the judgment, not having been rendered against the affiant, was void. The judge of the superior court erred in dismissing the certiorari.

Decided November 6, 1936. George W. Westmoreland, for plaintiff in error. Davis & Stephens, contra.

Judgment reversed.

Jenkins, P. J., and Sullon, J., concur.