Courtenay v. Randolph , 125 Ga. App. 581 ( 1972 )

Pannell, Judge.

In these companion cases plaintiff filed

two-count complaints against the respective defendants. Count 1 alleged malicious prosecution and Count 2 false imprisonment. The trial court denied defendants’ motions for summary judgment as to Count 1 and granted their motions as to Count 2. We are treating these rulings in the reverse order.

1. (Count 2). If the plaintiff was arrested under a void warrant the action is for false imprisonment and if the warrant is valid malicious prosecution is the remedy. Smith v. Embry, 103 Ga. App. 375 (3) (119 SE2d 45); Lowe v. Turner, 115 Ga. App. 503 (154 SE2d 792). Two warrants for the arrest of plaintiff were issued for defrauding an innkeeper. The affidavits both fail to state the time when the crime was committed. Plaintiff contends that this defect voids both warrants. She relies upon the cases of Lowe v. Turner, supra, and Lovett v. State, 111 Ga. App. 295 (141 SE2d 595). Neither case holds that the failure to state the time of commission of the crime in the affidavit, standing alone, will cause an otherwise sufficient affidavit and warrant to be void. In Turner the affidavit failed to state the time of commission, the place of occurrence and a description of the offense. In Lovett the affidavit and warrant only charged the defendant with the offense of misdemeanor on a named date. Here the affidavits sufficiently charged the dates of commission, the places of occurrence including the county, against whom the offense was committed, and a description of the offense of defrauding an innkeeper which is enough to show a strict compliance with Code §§ 27-103 and 27-103.1. The failure to state the time of commission is a mere technical defect and does not void the warrant. As the warrant is valid, the plaintiff cannot successfully maintain the action for false imprisonment and the grant of the summary judgments as to Count 2 must be affirmed.

2. (Count 1). The only issue presented as to the malicious prosecution count is whether the prior criminal cases terminated in plaintiff’s favor. That is an essential element of malicious prosecution. Clark v. Douglas, 6 Ga. App. 489 (65 SE 304). The trial court which had jurisdiction over the offenses placed the cases on the court’s dead docket. Code § 24-2714 (7). Placing a criminal case on the dead docket postpones the prosecution indefinitely "but [it] may be reinstated any time at the pleasure of the court.” Newman v. State, 121 Ga. App. 692, 694 (175 SE2d 144). The provisions of our law in reference to the dead docket (since the Code of 1895, §797 PC) reads as follows: "A docket of criminal cases, to be known as the dead docket, to which cases shall be transferred at the discretion of the presiding judge, and which shall only be called at his pleasure. When a case is thus transferred, all witnesses who may have been subpoenaed therein shall be released from further attendance until resubpoenaedPrior to the Code of 1895 and back to our original Code of 1863 (§262 (4)), the law in reference to criminal dockets reads as follows: "A docket in which must be entered all criminal cases which have been on the criminal docket for as much as five years without any existing arrest, and which must be inspected by the court, at least once every year, that if necessary, any case may be re-transferred to the criminal docket.” Placing a case upon the dead docket certainly constitutes neither a dismissal nor a termination of the prosecution in the accused’s favor. A case is still pending which can be called for trial at the judge’s pleasure, or upon which the accused can make a demand for trial. Newman v. State, 121 Ga. App. 692, supra. While this court in Newman v. State, in comparing the dead docket law with nolle prosequi without leave in North Carolina made the statement "with both, the prosecution is postponed indefinitely but may be reinstated any time at the pleasure of the court,” no reinstatement is required under the Georgia statute relating to the dead docket. No "reinstatement” is necessary, other than a possible "reinstatement” of the cases to the active docket. There is no language whatsoever in the Code section which states that the case can be "reinstated” at the pleasure of the court, or any other language indicating that a case is terminated in favor of the defendant when it is placed upon the dead docket. Even in our practice where a nolle prosequi is entered, the case is still pending for a period of six months and terminates then because that is what the statute provides. Code §27-601 (4). Since no reinstatement of the case is necessary before it can be called for trial, it must, as a necessity, still be pending in the court. Certainly, where a case needs no reinstatement or rebringing by new accusation or indictment, and can be brought to trial at the pleasure of the judge or upon the demand of the accused as a matter of right (Newman v. State, 121 Ga. App. 692, supra), it cannot be said to have terminated favorably to the accused; nor can it be said the prosecution has been abandoned so long as the case is pending. We find no other evidence of abandonment of the prosecution. The trial judge erred in overruling the defendant’s motion for summary judgment as to Count 1 of the petition.

Argued October 4, 1971 Decided February 25, 1972. Gerstein & Carter, Joe W. Gerstein, Richard F. Livingston, Jr., James H. Weeks, for Courtenay. Neely, Freeman & Hawkins, Thomas H. Harper, Jr., for Golfland. Holcomb & McDuff, Frank D. Holcomb, Robert McDuff, John H. Ramsaur, for appellee.

Judgment affirmed in part; reversed in part.

Jordan, P. J., Hall, P. J., Eberhardt, Quillian and Clark, JJ., concur. Bell, C. J., Deen and Evans, JJ., concur in part and dissent in part.