Oliveira v. State

45 Ga. 555

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

McCay, Judge.

The whole of this provision for the prosecution of public officers for malpractice, indicates the intention of the Legislature that the proceedings shall be guarded with more than ordinary strictness. The accused is entitled to notice of the charge, and to a copy of the bill of indictment, before the bill is found. He has, too, a right to go before the grand jury, to cross-examine the witnesses, and perhaps to bring forward matters in explanation and defense. The Act further provides that the indictment shall “ specially set forth the merits of the complaint.” This is far stronger language than is used in other indictments : Code, section 4432. Section 4535 provides, as a general rule, that it shall be sufficient to set forth the offense in the language of the Code. Something more must therefore be meant by the special provision of this section — 4432. We think that these words mean that there must be set forth in the indictment a detailed statement of the facts upon which the charge is predicated.

This indictment does not do this. It charges him with having taken a certain amount for his costs in a particular case, and that such sum was more than the legal costs. But it fails to state what the legal costs were, and how much he took more than the legal costs. It might just as well have charged that he took more costs than the law permitted, and said nothing as to any amount. This is not a “specific” statement of the merits of the complaint. Properly it ought to be stated what service was done, and the costs for each item, as fixed by law, and then alleged he took more and how much more. As it is, the accused only is informed that he took too much, leaving him to grope in the dark as to what items were overcharged and what he must prepare himself to meet.

Whilst we would be slow to put the least hindrance in the way of bringing to speedy punishment a corrupt officer, we must also remember that the law shows great tenderness to their errors as judges, and holds those who charge them with malpractice to more than ordinary strictness.

Judgment reversed.