139 Ga. 119 | Ga. | 1912
The plaintiff in error was indicted by the grand jury of Fulton county for the offense of obtaining money on a false writing; for that he designedly, by color of a certain counterfeit writing, made in a fictitious name, viz., a check, did obtain a certain sum of nioney from an incorporated bank. He interposed a demurrer to the effect that the facts alleged did not constitute the crime denounced in the Penal Code, § 249, and were insufficient in law to charge any crime. His demurrer was overruled, and he excepted pendente lite. The ease proceeded to trial, and he was convicted. He made a motion for new trial, which was overruled, and he sued out a bill of exceptions to the Court of Appeals, assigning error on the ruling pendente lite, and on the judgment overruling his motion for new trial. On June 5, 1912, the Court of Appeals rendered a judgment affirming that of the lower court, and on the next clay the plaintiff in error made a motion for a rehearing. The Court of Appeals declined to grant a rehearing, but amended its opinion so as to include a ruling on the demurrer, reciting, in its opinion declining a rehearing, that upon the original investigation of the record the point raised on demurrer had been maturely considered, and that the court was of the opinion that the demurrer was properly overruled, but by inadvertence the point was not dealt with in the opinion filed with the judgment of affirmance. 11 Ga. App. 329, 332 (75 S. E. 338). On the same day that the rehearing was denied the Court of Appeals ordered the remittitur to be sent to the lower court; which was done. Thereafter the plaintiff in error sued out a writ of habeas corpus before the judge of the superior court of Fulton county, demanding release from custody, on the grounds, that the indictment charged no offense against the laws of Georgia; that he had been denied due process of law, in that the Court of Appeals in its original opinion ignored the point raised on demurrer; that the indictment charged no crime; and that the court had no right to subsequently rule thereon without granting a rehearing in the case. The court refused to discharge the plaintiff in error, and he excepts to that judgment.
Judgment affirmed.