151 Ga. 632 | Ga. | 1921
The Court of Appeals certified to the Supreme Court the following questions:
“ 1. Is a criminal warrant issued by a judge of the municipal court of Atlanta invalid for the reason that the affidavit upon which it was based was made before a deputy clerk of the court, not in the presence of the judge? In other words, has a deputy clerk of the municipal court of Atlanta authority to take an affidavit which is to be the basis of a criminal warrant, or is such authority confined to a judge of the court?
“ 2. Does an affidavit and warrant which charges a person with ‘ conversion of proceeds of sale under section 190 of the Criminal Code of Georgia’ set out any offense under the laws of. Georgia?
“ 3. The petition in paragraph 7 alleges that ‘ said defendant has' not persisted in his said complaint, but has deserted and abandoned the same, and said prosecution is now fully determined and ended.’ The petition further shows that the warrant was issued on October 1st, that the plaintiff was tried on October 3d, and that the present suit for damages was filed on 'October 14th. The petition fails to show that the plaintiff has not been indicted by the grand juTy of the county, or that a grand jury has been in session without the return of an indictment against the plaintiff, or that a reasonable time has elapsed since October 3d within which prosecution could have been carried on by the defendant. Was the petition subject to a demurrer which averred ‘that it ■appears, as a matter of law, that said alleged prosecution has not been fully determined and ended, as alleged in paragraph 7 of said declaration, and that it likewise appears from said declaration that this action has been prematurely brought, and no cause of action is set forth ? ’
“4. No special damages were sued for, but suit was brought*634 for $10,000, general damages. Paragraph 8 of the petition is as follows: ‘ By reason of which said several premises the plaintiff has been and is greatly injured in his reputation, and brought into public scandal, infamy, and disgrace among all of his neighbors and other good and worthy citizens of the State; and divers of the said citizens and neighbors, to whom his innocence in the premises was and is unknown, have by reason of the premises suspected and believed, and do suspect and believe, that the said plaintiff has been and is guilty of felony.’ Was this paragraph subject to the following demurrers:. e This defendant demurs specially to the allegations of paragraph 8 of said declaration, and says that said allegations setting up alleged damages are mere conclusions of the pleader, and are not allegations of fact, and said alleged damages are too remote, speculative, and uncertain to be the basis of a demand for damages therefor; and said allegations are immaterial and irrelevant as to any issue in this ease ? ”
Section 35(a) of the act approved August 20, 1913 (Acts 1913, pp. 145, 161), establishing the municipal courts .of Atlanta, provides that “ any judge of said court shall have power to issue a warrant for the arrest of any offender against the penal laws, based either on his own knowledge or on the information of others given to him under oath.” Section 23 of the act (page 155) enumerates the powers and duties of the clerk of the municipal court, and in part declares that “All purely ministerial duties which, under the laws of this State, are performable by a justice of the peace or a notary public ex-officio justice of the peace, and any such duties prescribed by the rules of said court, shall be performable by the clerk, or his deputies. The clerk and deputy clerks of said court may administer oaths and take affidavits, but shall not have the power to attest deeds and similar instruments.” The Penal Code, § 789, declares that justices of the peace “have criminal jurisdiction in the following instances: . . In issuing warrants for the apprehension of any person charged on oath with a violation of any portion of the Penal Code, or who is so known to them officially. . .” The Penal Code, § 903, provides that “Any judge of a superior, city, or county court, or justice, or any corporation officer clothed by law with the powers of a justice, may issue his warrant for the arrest of any offender against
The Penal Code, § 789, par. 2, merely defines the jurisdiction of justices of the peace in criminal matters. It does not undertake to prescribe the form of the affidavit or warrant, nor does it designate the officer before whom the affidavit (the foundation of the warrant) is to be made or taken. The Penal Code, § 903, in express terms declares that “any judge of a superior, city, or county court, or justice of the peace, or any corporation officer clothed by law with the powers of a justice of the peace, may issue his warrant for the arrest of any offender against the penal laws.” The warrant may be based either on the officer’s own knowledge “ or the information of others given to him under oath.” Sections 905 and 906 prescribe the form, repectively, of the affidavit and warrant, and the form of the affidavit and warrant indicate that the oath of the prosecutor is to be made before the officer issuing the warrant. Section 908 expressly provides that the officer issuing the warrant may, “upon any sufficient ground of suspicion, . . require the applicant for the warrant to file a bond with sufficient sureties to prosecute the suit in the event of a committal.” While our code does not expressly declare that the oath is to be made before the magistrate or officer issuing the warrant, the sections quoted above clearly contemplate that the affidavit is to be made before the magistrate, or at least before an officer clothed with judicial power. The taking of the affidavit involves the examination of the complaining witness (generally called 'the prosecutor) and the determination therefrom whether an offense has been committed, and this action can not be performed by a mere ministerial officer. The substantial thing required by both our constitution and code is that probable cause for the arrest must exist, and that the complaint (the basis of the warrant) must be made on oath (unless the warrant is based on the magistrate’s own knowledge).
In view of the foregoing, it is unnecessary to answer the second question propounded by the Court of Appeals. Questions Nos. 3 and 4 are not such questions as this court is required to answer, under the ruling in English v. Rosenkrantz, 150 Ga. 817 (105 S. E. 613).