Smith v. State

199 S.E. 62, 58 Ga. App. 478, 1938 Ga. App. LEXIS 20

Opinion

Broyles, C. J.

1. “An accusation based upon section 311 of the Penal Code of 1910 [Code, § 26-4401], which does not show the nature of the ‘process or order’ which the officer is ‘serving or attempting to serve or execute,’ and that it was issued by some court in this State with proper authority to issue it, is fatally defective.” Evans v. State, 29 Ga. App. 204 (114 S. E. 812). . . “It is essential that the indictment should show from what court the process issued, not only in order that the defendant might be informed as to the particular process he is charged with obstructing, but also that it may appear from the indictment itself that the process was at least presumably a lawful one. The mere allegation that the process was a ‘lawful process,’ without more, amounts to nothing but the expression of a conclusion.” Paschal v. State, 16 Ga. App. 155, 158 (84 S. E. 725); Hunter v. State, 4 Ga. App. 579 (61 S. E. 1130).

2. Under the foregoing ruling and the facts of the instant case, the accusation was fatally defective, and the court erred in overruling the demurrer thereto; and that error rendered the further proceedings in the case nugatory. Judgment reversed.

MacIntyre and Guerry, JJ., concur.