11 Ga. App. 34 | Ga. Ct. App. | 1912
1. The plaintiff in error was convicted of the offense of extortion, and he excepts to the judgment overruling his motion for a new trial. Before pleading to the merits the accused filed a special plea, setting up the following facts: An accusation was .filed against him, signed by the solicitor of the city court and based upon the affidavit of the solicitor, charging the offense of extortion. The presiding judge quashed this accusation and entered an order appointing a solicitor pro tern., apparently entertaining the view that the solicitor of the court was disqualified, because he had made the affidavit upon which the accusation was based. The solicitor pro tern, preferred an accusation, based upon
We think the plea was properly overruled. We do not agree to the proposition that the solicitor of a court can not himself, if he knows the facts upon which the affidavit is based, make such affidavit and subsequently prefer an accusation charging the offense covered by the affidavit. The making of the affidavit does not disqualify the solicitor from subsequently preferring the accusation and prosecuting the case. The action of the presiding judge, however, in relieving the regular solicitor of the prosecution of the case because he had made the affidavit upon which the accusation was founded, and appointing a solicitor pro tern, to conduct the prosecution, was fully authorized, and was not a matter of which the accused could complain. Horton v. State, ante, 33 (74 S. E. 559).
2. Numerous special assignments of error are contained in the amended motion for a new trial, but the view that we entertain of the merits of the case renders unnecessary a decision of the special questions made. The facts make the following case: The accused was the deputy sheriff'of the county and was assigned to duty in the city court. He was directed by the solicitor to arrest three women charged with some criminal offense. He went to the home of these women, and told them that he had come to arrest them. It does not appear that the accused had in his possession any warrant, and the fact is not material. The women objected to being arrested, and asked the officer if there was any way to avoid an arrest. He finally consented to accept from each woman $10 as a “cash bond” for her appearance, and, in puruance of this agreement, the $10 was delivered to him by each of the women. The accused returned to the sheriff’s office and reported the fact that he had taken “cash bonds” for the appearance of the women. For some reason the mayor of the City of Fitzgerald and the clerk of the city court, and the solicitor of the city court, demanded that the deputy sheriff pay over the. money to them, and this the deputy sheriff declined to do. The deputy sheriff, in his state-
Judgment reversed.