Farmer vs. The State of Georgia

Supreme Court of Georgia1886-12-21

77 Ga. 134

Summary · law.co

Holding. The superior court properly dismissed the writ of certiorari because Farmer failed to include the required pauper's oath of poverty in his affidavit, a condition precedent to obtaining such a writ in criminal cases under Georgia law. The judgment of the superior court is affirmed.

Farmer was convicted in county court and petitioned the superior court for a writ of certiorari to review the conviction. The superior court dismissed the petition because Farmer's affidavit failed to include a required statement under Georgia's pauper act—specifically, that he lacked the financial means to pay court costs. Farmer had sworn that he received an unfair trial and was wrongly convicted, but omitted the poverty declaration. The superior court correctly dismissed the petition based on this procedural deficiency. Georgia law required all three components of the affidavit to be filed before a writ of certiorari could issue in a criminal case: the claim of unfair trial, the claim of wrongful conviction, and either a bond or a pauper's oath of poverty. The court determined that these prerequisites were equally mandatory and that no subsequent filing or court action could supply the missing poverty affidavit, since only Farmer could attest to his own financial condition.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether a writ of certiorari in a criminal case can be granted without a complete affidavit containing all statutory prerequisites
Whether a pauper's oath of poverty is a mandatory condition precedent to certiorari review
Whether defects in a certiorari affidavit can be cured by subsequent filings or the county court's answer

Procedural posture

Farmer appealed the superior court's dismissal of his certiorari petition challenging his county court conviction.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Jackson, Chief Justice.

But one point is made in this record. The defendant was convicted in the county court of the county of Douglas, and sued out a writ of certiorari to the superior court.

The superior court dismissed the writ on the ground that the affidavit, as a condition precedent to the grant of the writ, had not been made in accordance with law, in that the affiant, under the pauper act, did not swear that because of poverty he was unable to pay the costs.

The dismissal for this reason is the error assigned

Section 302 of the Code declares this proviso to the privilege of taking the case up to the higher court by certiorari: “Provided, that no writ of certiorari shall be granted in a criminal case, unless the accused shall first have filed his affidavit, setting forth that he has not had a fair trial, and that he has been wrongly and illegally convicted, and unless the party applying shall give such bond and security or make such affidavit as is permitted in this Code for parties in criminal cases carrying up such cases to the Supreme Court of this State.”

In section 4263 of the Code, in respect to bringing cases to this court, the pauper oath prescribed is “ that he is unable, from his poverty, to pay the costs.” Therefore, whilst this applicant for the writ has taken the oath “that he has not had a fair trial, and that he has been wrongly and illegally convicted,” he has failed to swear “ that he is unable, from his poverty, to pay the costs.” The last mentioned prerequisite to the grant of the writ is as necessary and imperative as the other two, if no bond is given, and the statute in the proviso commands positively that no writ shall be granted “ unless the accused shall first have filed” this part of the affidavit as well as the rest of it. .

Hence the court could not do otherwise. It makes no difference that the oath prescribed in §4263 is made by that statute only necessary to obtain a supersedeas, and does not work also a dismissal in this court. It is not the supersedeas portion of the act codified in §4263 of the Code that section 302 makes applicable to the certiorari to the county court, but only the pauper oath prescribed in §4263.

That section 4263 makes the oath a condition precedent to a supersedeas; section 302 makes thé saíne oath a condition precedent to the grant of the writ of certiorari.

“No writ of certiorari shall be granted in a criminal case unless the accused shall first have filed his affidavit,” etc., is the command in §302. “ The bill of exceptions thus filed shall operate as a supersedeas upon, the plaintiff in error complying with the following terms:” one of which terms is this pauper oath, is the command in §4263.

Counsel cited Taylor vs. Gay, 20 Ga. 77, to show that after the answer to the writ by the lower court, it was too late to dismiss the writ of certiorari / but that case was where the affidavit as to the facts was not made except on information. It was properly held, of course, that when the court below had sent up a verification of these facts, the deficiency of the affidavit was cured, and the case was not dismissed. But no answer of the county court could possibly supply the affidavit of poverty that the statute made a condition precedent, and of course the answer of the county court says nothing about the applicant’s poverty, and could say nothing about it unless sworn to by him.

Judgment affirmed.