Dye v. StateDye v. State
- Reporters:
- , ,
- Before:
- Nichols
1. A sеarch warrant issued by a justice of the peace is a “lawful process or order” as described in Code § 26-4401.
(a) There is no statutory restriction prohibiting a justice of the peace from issuing а search warrant requiring the search of premises within the county but outside his district (see 79 CJS 855, Searches and Seizures, § 72b), and in the absence of such a restriction a search warrant may be issued by a justice of the peace for the search of any premises within the county wherein his district lies.
(b) An indictment charging a defendant with obstructing legal process which includes every element contained in Code § 26-4401 is not subject to demurrer. See Harrison v. State, 26 Ga. App. 645 (107 SE 90); Code § 27-701.
2. The courts will take judicial notice of who are the justices of the peace in a given county (see Abrams v. State, 121 Ga. 170 (48 SE 965)), and therefore there was no variance in the evidence because the indictment alleged the search warrant was issued by “Lamar Brown, a Justice of the Peace” and the warrant introduced in evidence was signed “Lamar Brown a judicial officer.”
3. While the Supreme Court in Davis v. State, 79 Ga. 767 (4 SE 318), criticized the practice of permitting an officer, who is the prosecutor in a criminal ease, to execute an arrest warrant issued upon his affidavit, and in McCray v. State, 134 Ga. 416, 426 (68 SE 62), expressly held that: “One whose name appears upon a warrant as prosecutor, or who, though not named as such in the warrant, is to аll intents and purposes a prosecutor in the case in whiсh the warrant is issued, is not a proper person to exeсute the warrant,” yet where, as in the present case, the prosecutor who obtained a search warrant was only one of a group of officers seeking to execute suсh warrant and the warrant was in the possession of another *300 officer in such group who attempted to serve such warrant uрon the defendant before, during and after the defendant attacked the prosecutor who sought such warrant, the actions of the defendant were in violation of Code § 26-4401.
(a) Where as in the рresent case the evidence is in sharp conflict, but that рresented by the State ‘authorizes a finding that the defendant knew thе officers who were in uniform and knew of the search warrant аt the time he attacked one of the officers in the group it cannot be said that the verdict finding that the defendant had knowingly and wilfully obstructed an officer seeking to’ aid in the execution оf the warrant was not authorized by the evidence.
4. The misspelling of the word “perjury” by the court reporter as “purgery” when transсribing the court’s charge is not cause for a new trial, and prior to the approval of the Appellate Practiсe Act of 1965 (Ga. L. 1965, p. 18), when a motion for new trial was required to bе filed the trial court would have properly correctеd this misspelled word in the charge before such question reaсhed this court. See Fairburn & A. R. & E. Co. v. Hale, 32 Ga. App. 412 (123 SE 724).
(a) A.charge relating to the duty of the jury to rеconcile conflicts in the testimony so as to impute perjury to no one which states that “the law puts upon” you (the jury) this duty rathеr than “it is your duty” is not error.
5. There was evidence to authorize the excerpts from the charge complained of in the fifth and sixth enumerations of error and the trial court did not express an opinion as contended in the sixth enumeration of error.
Judgment affirmed.
Hall and Deen, JJ., concur.