Opinion
34654.
SUBMITTED MARCH 2, 1979.
DECIDED APRIL 6, 1979.
Certified questions from the Court of Appeals of Georgia.
Judson R. Knighton, for appellant.
Herbert A. Rivers, Solicitor, Stephen Schuster, Assistant Solicitor, for appellee.
We are asked to instruct the Court of Appeals concerning the following certified questions: (1) "In all misdemeanor cases which may be prosecuted in superior court, in which the district attorney has the authority to prefer accusations, does Code § 27-704 as amended, which is silent on the subject, require that the accusation be supported by affidavit?" and (2) "Does § 27-704 as amended apply to those courts falling within the provisions of the State Court Act of 1970 (Ga. L. 1970, pp. 679, 680; Code Ann. Ch. 24-21A)?" We answer both questions in the affirmative.
1. "The power to try misdemeanors is conferred by statute, with the specified waiver by the accused; but the trial must be upon accusation founded upon affidavit. Affidavit is essential, and if the instrument treated by the court and the parties as an affidavit be void, there is no foundation for the proceedings; the whole trial is a nullity..." Scroggins v. State, 55 Ga. 380, 382 (3) (1875); Martin v. State, 139 Ga. App. 8 (1) ( 228 S.E.2d 15) (1976); Faulkner v. State, 146 Ga. App. 604, 606-607 (2) ( 247 S.E.2d 147) (1978).
2. The procedure authorized in Code Ann. § 27-704 for hearing charges tried upon accusations would also be applicable to state courts where pertinent. See the "State Court Act" (Ga. L. 1970, pp. 679-682, p. 681, Sec. 8; Code Ann. § 24-2107a).
This Act is entitled "Practice and Procedure, etc., in Certain Courts Below Superior Court Level."
Certified questions answered in the affirmative. All the Justices concur.