Moore v. State

22 S.E. 960, 96 Ga. 309

• Court: Supreme Court of Georgia
• Decided: June 10, 1895
• Status: Published

Opinion

Lumpkin, Justice.

Under sections. 302 and 303 of the code, a writ of certiorari from a conviction in a county court is not necessarily returnable to a regular term of the superior court, but the superior court judge may require the county judge to certify and send up to the former a complete history of the case, and the certiorari may then be heard and determined at any time after ten days’ notice to the accuser. It can hardly be doubted, however, that the judge of the superior court has the right to make the certiorari returnable to a regular term of the superior court, if he sees proper to do so; and this, we understand, is the usual practice observed in such cases. At any rate, this seems to have been done in the present instance. We therefore think the certiorari became a regular superior court case. It was undoubtedly a ciiminal case to which the State was a party. This being so, it was, under the constitution (Code, §5160), the duty of the solicitor-general of the circuit to represent the State upon the trial of the case in the superior court. Therefore, according to the principle announced by this court in Butts v. State, 90 Ga. 450, he should have had notice of the sanction of the certiorari and of the time and place of hearing; and the notice as to these matters which was served upon the solicitor of the county court was ineffectual.

We are not now called upon to decide whether or not notice to the accuser would have been sufficient had the certiorari been made returnable before the judge of the superior court in vacation. Judgment affirmed.