Mitchell v. State

87 S.E. 154, 17 Ga. App. 405, 1915 Ga. App. LEXIS 458

Opinion

Broyles, J.

1. An indictment against a justice of the peace for the offense of malpractice in office, which charged that he “did wilfully, knowingly, and corruptly, in the administration and under color of his offiee, demand and receive from one M. H. Rothschild the sum of five dollars, which was demanded and received as a fee "or costs by the said [defendant] for ‘garnishee’s answer’ in the case of Norton Frierson vs. M. H. Rothschild, and Joseph Rosenheim Shoe Company, garnishee, a suit on an account then pending in the justice court of the said [defendant], when in truth and in fact the said [defendant], justice of the peace as aforesaid, did not make up any answer for said garnishee, nor was he concerned in the making of any such answer, nor 'was he otherwise entitled by law to exact the said sum of five dollars from the said M. H. Rothschild,” was subject to general and special demurrer, there being no averment in the indictment that the garnishee company did not make any answer in the case, or that it was not put to any expense in making the answer, or that the defendant demanded and received the five dollars with the intent of keeping it for his own use and not for the purpose of paying it over to the garnishee company .to cover the expense of making its answer; and the use of the words • “wilfully, knowingly, and corruptly,” and the employment of the other language, to wit, “nor was he otherwise entitled by law to exact the said sum of five dollárs from the said M. H. Rothschild,” did not cure the defects pointed out.

Decided December 6, 1915.

Indictment for malpractice in office; from Chatham superior court — July 26, 1915.

Shelby Myrick, for plaintiff in error. Walter C. Hartridge, solicitor-general, contra.

2. The court erred in overruling the demurrer.

Judgment reversed.