Jarvis v. State , 69 Ga. App. 326 ( 1943 )

Counsel in their motion for a rehearing of this case cite in support thereof Scroggins v. State, 55 Ga. 380, and McDonald v. Farmers Supply Co., 143 Ga. 552 (85 S.E. 861). In the Scroggins case it was held that objection to a void affidavit could be taken after the conviction and sentence of the accused, and that the conviction, if the affidavit were void, should be set aside by the superior court on certiorari. However, that case was tried in a justice's court, a court of very limited jurisdiction, and the above-stated ruling has not properly been applied to higher trial courts. (Indeed, a justice of the peace no longer has the authority to try and sentence any one in a criminal case.) The ruling now definitely approved by the Supreme Court and this court is that where an affidavit, upon which an accusation is based, is void, the objection, if madeafter the conviction of the accused, must be by motion in arrestof judgment. In addition to the authorities cited in our original opinion, se Boswell v. State, 114 Ga. 40 (2) (39 S.E. 897). In that case the decision in Wood v. State,46 Ga. 322, holding a contrary view, was overruled, and it was stated that the proper rule of practice was fixed by the court inWhite v. State, 93 Ga. 47 (cited in our original opinion).

Movant cites a certain portion of Justice Lumpkin's opinion in the McDonald case, supra. However, the Justice expressly stated that in that part of his opinion he was speaking for himself only.

None of the grounds of the motion shows cause for a rehearing of the case.

Rehearing denied. MacIntyre and Gardner, JJ., concur.