Edmondson v. State, 123 Ga. 194

Edmondson v. State

123 Ga. 194 | Ga. | 1905

Lumpkin, J.

(After stating the facts.) 1. The act of August 14, 1885 (Acts 1884-5, pp. 475-6, §30), provides, “That the defendants in criminal cases in said city court of Macon may be tried on written accusation setting forth plainly the offense charged, founded' on affidavit made by the prosecutor; said affidavit shall be made before said judge, and said accusation shall be signed by the prosecutor and the prosecuting officer in said court.” It is contended that the judge of the city court was disqualified from taking and attesting the affidavit, because of his relationship to the defendant. It is not altogether certain that there was any disqualification so far as administering the oath and attesting the affidavit were concerned, although the judge was disqualified from presiding on the trial of the case. See, on this subject, Thornton v. Wilson, 55 Ga. 607; Savage v. Oliver, 110 Ga. 636, 638, and cases cited; 17 Am. & Eng. E. L. (2d ed.) 753; Civil Code, § 4045. On the subject of the .disqualification *196of ministerial officers, see Herring v. State, 119 Ga. 710, 715; Ex parte Gist, 26 Ala. 156, 161; Flury v. Grimes, 52 Ga. 341; State v. Jeter, 60 Ga. 489; Johnson v. Shurley, 58 Ga. 417. It is unnecessary to decide whether the judge of the city court of Macon was qualified to administer the oath and'attest the affidavit or not. In any event, no authority was conferred by the act of 1885 upon the judge of the superior court to do so. .The constitution authorizes the judge of the city court and the judge of the superior court to preside in the courts of each other respectively, in cases where either is disqualified, in any county where a city court exists (Civil Code, § 5851); but where a legislative act provides that a prosecution in a certain city court shall be begun by affidavit made by the prosecutor, which shall be made before the judge of that court, the constitutional provision referred to does not of itself authorize the judge of the superior court of the circuit to take and attest such an affidavit on the ground that the judge of the city court is disqualified from acting, by reason of relationship to the defendant. This is not presiding in a ease in the city- court, within the meaning of the constitution. Northwestern Mut. Life Ins. Co. v. Wilcoxon, 64 Ga. 556; Ivey v. State, 112 Ga. 175. The affidavit made before the judge of the superior court and attested by him, and the accusation based thereon, being without authority of law, the judgment should have been arrested on motion.

2. On the trial the judge of the city court of Eorsyth presided at the request of the judge of the city court of Macon, on the ground that .the latter was disqualified. Acts 1899, p. 48. Inasmuch as the ruling above made controls the entire case, it would be useless to refer to the rulings made on the trial. The writ of error bringing up the overruling of the motion for a new trial is dismissed, with direction that all proceedings in ■ the case be vacated.

Judgment reversed in the first case; writ of error dismissed in the second case, with direction.

All the Justices concur, except Simmons, O. J, absent.