Parks v. Ash , 168 Ga. 868 ( 1929 )

Russell, C. J.,

dissenting. I can not concur in the ruling in regard to the charge of the court with reference to abandonment of the office. There can be an abandonment of an office, just as a change of residence, without any notorious declaration whatsoever. An absolute refusal to perform the duties of au office might constitute an abandonment, without any declaration whatever explicitly stating that the officeholder had abandoned his trust. Furthermore, I can not agree with the conclusion reached by the majority of the court that the charge which is conceded to be error is harmless. The ruling is based upon the fact that there was indeed no evidence of abandonment, no sufficient evidence to show that this candidate had abandoned his former official position. It is a well-settled rule that it is always error for the court to confuse the jury by charging upon a theory that has no evidence upon which it can be predicated. Central Georgia Power Co. v. Cornwell, 139 Ga. 1 (76 S. E. 387, Ann. Cas. 1914A, 880). I am authorized by Mr. Justice Hill to say that he concurs in this dissent.