Strickland v. MAYOR & COUNCIL OF THE CITY OF ATHENS

111 Ga. App. 280 (1965) 141 S.E.2d 594

STRICKLAND
v.
MAYOR & COUNCIL OF THE CITY OF ATHENS.
GUEST
v.
MAYOR & COUNCIL OF THE CITY OF ATHENS.

41193, 41194.

Court of Appeals of Georgia.

Decided March 9, 1965.

Hudson & Steele, Jim Hudson, for plaintiffs in error.

Joseph J. Gaines, contra.

NICHOLS, Presiding Judge.

The defendants were convicted in the Recorder's Court for the City of Athens under an ordinance which provides that no person shall fire any pistol, gun or other firearm in the city within three hundred yards of any street, alley or building in the city. The defendant Guest was identified as the driver of an automobile and the defendant Strickland as the person who actually did the shooting from such automobile on a public street in the City of Athens. On certiorari the convictions were affirmed by a judgment dismissing the petitions. Error is now assigned on the judgments of the superior court dismissing the petitions for certiorari. Held:

1. "Where constitutional issues are raised for the first time in the superior court on certiorari from a judgment of an inferior tribunal, the superior court can not consider, nor can this court review, the constitutional questions thus sought to be made." Jones v. Mayor &c. of Athens, 105 Ga. App. 86 (3) (123 SE2d 420). See also Thompson v. Allen, 195 Ga. 733 (25 SE2d 423); Brackett v. City of Atlanta, 51 Ga. App. 92 (179 S.E. 584).

2. Identity is a question for the trior of fact, and where a witness identifies a defendant (whether the identification be based on the defendant's eyes, clothes, hairline or some intangible factor not capable of description), the credibility of the witness making such identification is not to be decided by this court. See Revill v. State, 210 Ga. 139 (78 SE2d 12); Johnson v. State, 73 Ga. 107; Gray v. State, 6 Ga. App. 428 (4) (65 S.E. 191); Kirby v. State, 43 Ga. App. 102 (1) (158 S.E. 438).

3. All who participate, either directly or as accessories, in the violation of municipal ordinances are equally guilty as principals. See Stradley v. City of Atlanta, 7 Ga. App. 441 (2) (67 S.E. 107); DeFreese v. City of Atlanta, 12 Ga. App. 201 (1) (76 S.E. 1077); Morse v. Mayor &c. of Macon, 9 Ga. App. 829 (72 S.E. 284).

4. The evidence authorized the convictions and the judge of the superior court did not err in dismissing the petitions for certiorari for any reason assigned.

Judgments affirmed. Eberhardt and Pannell, JJ., concur.