161 Ga. 551 | Ga. | 1926
By the act creating the city court of Miller County, a defendant in a criminal case in that court “may be tried on written accusation framed and signed by the solicitor of said court.” Acts 1909, p. 276, § 3. Is a paper purporting to be an accusation, but unsigned by the solicitor of that court, amendable by attaching thereto the name of the solicitor ? The proper answer depends upon whether such unsigned accusation is void or only voidable. Under the above statute there are two vital essentials of a valid accusation charging a defendant with a misdemeanor. One is that it must be in writing. No defendant can be tried in that court for a misdemeanor upon an oral accusation. The other is that the accusation must be signed by the solicitor of the court. Until a writing purporting to be an accusation is signed by the solicitor of this court, it is defective. The signature of the solicitor is the thing which breathes into the instrument full life and force. But does the lack of such signature render the accusation wholly invalid or void?
It has been held by this court in many cases that a bill of exceptions that is signed neither by the plaintiffs in error nor their
In Brooke v. McWhorter, 130 Ga. 590 (61 S. E. 404), this court held that a writing filed, purporting to be a plea of a defendant, which was not signed by himself or his counsel, should have been stricken on motion of the plaintiff, and that the refusal of such
An accusation is the equivalent of a common-law information, and is amendable. Conley v. State, 83 Ga. 498 (10 S. E. 123); Gordon v. State, 102 Ga. 673, 679 (29 S. E. 444); Wright v. Davis, 120 Ga. 676 (48 S. E. 170); Goldsmith v. State, 2 Ga. App. 283 (58 S. E. 486); Crawford v. State, 2 Ga. App. 185 (58 S. E. 301);
Pending such unsigned accusation, could the solicitor proceed to forfeit the recognizance of the defendant where he failed to appear in court for trial at the time therein required; and where, in answer to the rule nisi requiring the defendant and his sureties to show cause why a judgment of forfeiture absolute should not be rendered, the sureties set up that there was no breach of the bond, because the accusation had not been signed, did the court below commit error in permitting the solicitor to attach his signature to the accusation, and directing a verdict against the sureties on the bond? In Liceth v. Cobb, 18 Ga. 314, this court held that a defendant was not bound to appear before indictment. In Braxton v. Candler, 112 Ga. 459 (37 S. E. 710), this court held that when it appeared that no indictment or formal accusation was pending in court against the principal at the time the order nisi to forfeit the recognizance was granted, a judgment absolute could not be legally rendered against the surety on the recognizance. In State v. Lockhart, 24 Ga. 422, this court held that where an indictment was fatally defective, in that it charged the defendant with no offense, then the party stood as if he were unindicted, and that there had necessarily been no breach of his bond. This ruling was cited and approved in State v. Woodley, 25 Ga. 235, and in McDaniel v. Campbell, 78 Ga. 188. In Candler v. Kirksey, 113 Ga. 310 (38 S. E. 825, 84 Am. St. R. 247), this court held that an indictment which charges the- principal in the recognizance with no offense against the State amounts to no indictment, and that the sureties may set up its invalidity in defense of the scire facias to forfeit the recognizance. But forfeiture can not be successfully resisted by an attack on the indictment against the principal, unless it appears that such indictment is void. Williams v. Candler,
The question of the Court of Appeals is answered in the affirmative.