Opinion
48007.
SUBMITTED APRIL 2, 1973.
DECIDED JUNE 14, 1973.
Abandonment. Lanier Superior Court. Before Judge Lott.
Jack J. Helms, for appellant.
Vickers Neugent, District Attorney, for appellee.
The defendant was brought to trial on an accusation for the abandonment of his illegitimate child. The accusation alleging that he abandoned the child in Lanier County, Georgia, on August 20, 1972. The accusation further recited that it was based on the affidavit of Vickie Bailey, the prosecutrix, made August 20, 1972, before John W. Harrell, justice of the peace in and for said county. There was no such affidavit attached to or accompanying the accusation.
Upon the call of the case for trial, defendant before pleading to the accusation, through his attorney demanded that the affidavit be produced and objected to proceeding until same was produced. The court overruled defendant's demand and objections; whereupon, the defendant plead not guilty and proceeded to trial. The defendant was found guilty and an appeal was filed. Held:
1. Enumeration of error number three contends the court erred in charging the jury: "A reasonable doubt is a doubt for which you can give a reason and means just what it says. It is the doubt of a fair minded, impartial juror honestly seeking the truth, not an arbitrary or capricious doubt or a doubt arising from the consideration of the evidence or from a lack of evidence or from a conflict of evidence." (Emphasis supplied.) Under that which was held in Hunsinger v. State, 225 Ga. 426, 429 ( 169 S.E.2d 286), the defendant's contention is correct.
2. The defendant objected because the affidavit upon which the accusation was based was not produced. A valid affidavit is essential to support an accusation and without such an affidavit the whole trial is a nullity. Scroggins v. State, 55 Ga. 380 (3); Gilbert v. State, 17 Ga. App. 143 (4) ( 86 S.E. 415). Therefore, upon the retrial of this case if no valid affidavit is found to exist any conviction would be void.
3. The remaining enumerations of error are without merit.
Judgment reversed. Bell, C. J., and Deen, J., concur.