Cooper v. State , 17 Ga. 437 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

[1.] The scire facias on a forfeited bail bond, in an indictment, has to issue from the Court in which is the indictment. (Cobb's Dig. 861, 862.)

The indictment in this case was, to a certainty, at first, in the Cohrt of Pike Co. The Court of that county was the one in which the indictment was made. And whether the indictment ever got out of that Court into the Court in Spalding, does not appear; forit does not appear whether the offence charged in the indictment was committed in that part of Pike which was afterwards converted into Spalding, or in that part which was allowed to remain Pike.

For aught that appears, then, the indictment still remained in the Court in Pike County, notwithstanding the Act of the Legislature, which, out of a part of Pike County and parts of other counties, made Spalding.

This being so, for aught that appears, the Court in Pike was the Court from which the scire facias against the bail had to be issued. And unless something appeared going to show that the Court in Pike had ceased to be such Court, it is not to be presumed that it had ceased to he such.

There is, therefore, no foundation, in fact, for the ground of the affidavit of illegality, to the effect that the ca. sa. should have issued from the Court in Spalding, and not from the Court in Pike.

The Act of 1851-2 seems, indeed, not to have provided for the transfer of criminal cases, but only of civil. (Acts, 60.)

Of the other grounds contained in the affidavit of illegality, none were insisted on in the argument'before this Court.

The judgment of the Court below, over-ruling the affidavit of illegality, ought therefore to be affirmed.