Johnson v. State , 7 Ga. App. 551 ( 1910 )

Hill, O. J.

Cornelia Johnson was convicted, in the criminal court of Atlanta, of selling intoxicating liquors, and petitioned the superior court of Pulton county for a writ of certiorari. The. writ was granted, and on the hearing the certiorari was dismissed; •and this judgment is assigned as error. The accused was tried on an accusation which gave her name as Cornelia Johnson. This, •accusation was based on an affidavit which stated the defendant’s name as Cornelius Johnson. After conviction, the accused made a motion in arrest of judgment, on the ground that the accusation was not based upon any affidavit as required by the statute, and that an affidavit charging Cornelius Johnson with the oiIen.se of selling liquor was not sufficient upon which to base an accusation charging Cornelia Johnson with that oifense. The court overruled the motion in arrest of judgment, and this ruling is one of the errors assigned in the petition for certiorari. Ho special plea in abatement setting up the alleged misnomer was filed; nor was there any pretense that the defendant who was tried and convicted as Cornelia Johnson was not in fact the same person named in the affidavit upon which the accusation was based, as Cornelius Johnson. The identity of the person tried and convicted as the person against whom the affidavit was made was not controverted. Doubtless the classic name of Cornelia was frequently perverted by the defendant’s friends and acquaintances into that of Cornelius. But in any event, if the error in orthography was not too trivial for legal procedure, the proper remedy would have been a special plea in abatement, and not a motion in arrest.

The other errors assigned in the petition for certiorari were eliminated from the case by the judge’s answer to the writ. In this court the question is for the first time raised in this case that the venue was not shown. This being a jurisdictional question, it can be made here under the general assignments of error. But an examination of the evidence set out in the petition for certiorari, and in the answer to the writ, shows that the venue was proved. The police officer who made the arrest testified that defendant, Cornelia Johnson, “lived at 4-7 Johnson avenue, Atlanta, Pulton county, Georgia;” and several witnesses testified that they bought whisky “at Cornelia Johnson’s,” and one witness testified to a sale that took place “at Cornelia Johnson’s house.” This evidence together, we think, shows the venue. Judgment affirmed.