Prichard v. State

129 S.E. 12, 34 Ga. App. 181, 1925 Ga. App. LEXIS 128

Opinion

Bloodwobth, J.

1. An indictment or accusation based upon section 311 of the Penal Code of 1910, which does not allege that the officer was attempting to serve or execute a lawful process or order, is' fatally defective. Evans v. State, 29 Ga. App. 204 (114 S. E. 812).

2. The headnotes to an opinion rendered June 20, 1925, by the Supreme Court in answer to certified questions propounded by this court (160 Ga. 527, 128 S. E. 655) are as follows:

(а) Under sections 339 and 366 of the Penal Code, a third person can .not be punished for resisting or obstructing an officer in this State who is attempting, without a warrant, to arrest another for a violation of the prohibition law of this State, which makes the possession or transportation from point to point in this State of intoxicating liquors a misdemeanor.

(б) The above sections of the Penal Code only adopt and make crimes in this State offenses against public justice or against the public peace which were punishable as such at common law.

3. Under the foregoing ruling, the court erred in overruling the general demurrer to the accusation, and the further proceedings.were nugatory.

Judgment reversed.

Broyles, G. J., and Luke, J., eoneur. C. G. Battle, for plaintiff in error. Lawrence 8. Camp, solicitor, William B. Jones, solicitor, contra.