55 Ga. App. 288 | Ga. Ct. App. | 1937
The indictment in the present case was as follows: “In the name and behalf of the citizens of Georgia, charge and accuse Mrs. Mattie Crow with the offense of perjury; for that the said Mrs. Mattie Grow on the 12th day of April in the year nineteen hundred and thirty-five, in the county aforesaid, did then and there, unlawfully and with force and arms, wilfully, knowingly, and absolutely and falsely swear after a lawful oath had been administered to her, said oath being the oath prescribed by the laws of the State of Georgia to be administered to a witness upon trials of cases and investigations held in the justice courts of the State of Georgia by officers of the justice court of the 1096 district G. M., Catoosa County, Ga., and in the presence of the court and by the direction of court, and in a matter material to the issue and point in question in a judicial proceeding and investigation being then and there tried in the said justice court of the 1096 district G. M., of said county and State, said case and investigation being preliminary trial in which J. D. Ball was charged with the offense of assault and battery upon Mattie Crow, said offense being alleged to have been committed in Catoosa County, Ga., and the said Mat.tie Crow, after having been sworn as a witness for the State in the case and investigation then and there being held and had in said justice court of the district, county, and State aforesaid, testified upon the trial of the said case and investigation as follows; the said evidence being material to the issue in said investigation, the testimony of the said Mattie Crow and sworn to by the said Mattie Crow was as follows: that J. D. Ball had struck her with his fist in her chest and had beat her; which said evidence and.matter so sworn to by the said Mat
We are of the opinion that the demurrer should have been sustained. An indictment for perjury must either allege expressly that the court in which the oath was administered had jurisdiction, or allege a state of facts which shows jurisdiction. The crime of perjury can be committed only in a “judicial proceeding." Code, § 26-4001. “A ‘judicial proceeding' is a proceeding in a legally-constituted court." Garrett v. State, 18 Ga. App. 360 (89 S. E. 380). There can be no preliminary investigation or legal commitment for a criminal offense in a justice’s court without the issuance of a criminal warrant. Code, §§ 24-1501, 27-401; Ormond v. Ball, 120 Ga. 916 (48 S. E. 383). It is in effect the written pleadings and is the sine qua non for the legality of such investigation. In Renew v. State, 79 Ga. 162 (4 S. E. 19), the Supreme Court held: “Judgment upon an indictment for perjury will be arrested when the indictment shows on its face that the alleged court before which the false testimony was given had no jurisdiction of the subject-matter on trial." It was said in the opinion: “The indictment alleges that the false oath was taken and the false testimony given in a proceeding on the charge of bastardy, in a ‘justice court,' presided over by two named justices of the peace. There is no allegation that either of these jus
Judgmeni reversed.