Opinion
32226.
DECIDED FEBRUARY 25, 1949.
Certiorari; from Bartow Superior Court — Judge Paschall. August 30, 1948.
J. L. Davis, for plaintiff in error.
Finley Henson, contra.
The judgment of the Recorder of the City of Cartersville, convicting the defendant of two offenses of exceeding the speed limit set by the city ordinance, was not without some evidence to support it; and the judge of the superior court did not err in refusing to sanction the petition for certiorari which complained of the judgment only on the grounds that it was contrary to law and without evidence to support it.
DECIDED FEBRUARY 25, 1949.
The defendant, James Wiley, was convicted in the Recorder's Court of the City of Cartersville on August 9, 1948, on two separate and distinct charges of exceeding the speed limit on the streets of Cartersville on the night of August 6, 1948. He petitioned the Superior Court of Bartow County for a writ of certiorari. Omitting the formal portion, the petition for certiorari alleged: "2. Petitioner shows that he was charged with the offense of speeding in an automobile upon the public streets of the City of Cartersville on the night of August 6, 1948. Petitioner admits that there is a valid ordinance of the City of Cartersville which prohibits the operation of an automobile in excess of 25 miles per hour in the area in which he was alleged to have been operating his automobile and further admits that he was operating his automobile in excess of 25 miles per hour at the time and place alleged. [Emphasis added.] 3. Petitioner shows that he was charged with two (2) offenses on the same night and alleged to have occurred within 15 minutes of each other, and petitioner further charges and alleges that if he was guilty he was guilty of only one offense of speeding upon the public streets of the City of Cartersville. Policeman Westbrooks, a policeman of the City of Cartersville, was sworn as a witness for the City of Cartersville and testified substantially as follows: `I saw the defendant, James Wiley, driving his automobile in the city limits of Cartersville and when he speeded up I followed him in the patrol car, he outran me and got away and my speedometer showed 85 miles per hour and I was never able to catch up with the defendant and lost sight of him. While we were still looking for him and about 15 minutes later again we found the defendant and recognized him driving the same automobile at which time he was again driving in excess of 25 miles per hour and within the city limits of the City of Cartersville. We were never able to catch him at this time, and he was later apprehended and told to appear in Police Court on Monday night.' Another policeman of the City of Cartersville corroborated policeman Westbrooks and testified to exactly the same facts and circumstances as did policeman Westbrooks. 5. Petitioner plead not guilty to the two (2) charges of speeding against him and respectfully insisted of the court that he could not be guilty of but one charge of speeding under the evidence given against him upon the trial of the case. 6. Petitioner did not give any statement in his own behalf and after the testimony was introduced by the City of Cartersville petitioner through his attorney moved that he be discharged and acquitted of the two (2) charges of speeding upon the following grounds, to wit: (a) because there was no evidence to support a second charge of speeding against petitioner; (b) because the verdict of guilty was contrary to law and was contrary to the evidence; (c) because the verdict of guilty was contrary to the principles of justice and equity; (d) because under the evidence petitioner could have been found guilty of only one charge and offense of speeding and only of one offense of speeding in the city limits of Cartersville. 7. Petitioner shows that his motion was overruled upon all of the above-mentioned grounds and that he was found guilty as charged and was sentenced to pay a fine of $50 on each offense, the trial judge deeming each offense a separate and distinct offense and finding him $50 for each of the two offenses."
The exception here is to the refusal of the judge of the superior court to sanction the petition for certiorari.
The allegations of a petition for certiorari to review a conviction of violating a city ordinance are to be taken as true prior to the answer of the judge of the inferior judicatory, and there was, of course, no answer in this case as the court refused to sanction the petition for certiorari. Porter v. Thomasville, 16 Ga. App. 313 ( 85 S.E. 283); Linder v. Renfroe, 1 Ga. App. 58 ( 57 S.E. 975). The defendant admits in his petition for certiorari that there was a valid city ordinance limiting the speed of automobiles within the City of Cartersville, where he was charged to have been speeding, to 25 miles per hour and that he was violating that ordinance on August 6, 1948, by operating his automobile in excess of that speed; and, therefore, we take it as true that the defendant was violating the law and was properly convicted of the offense of speeding within the city limits of Cartersville, under the evidence in the case. There is no question on that score. The defendant alleged in his petition for certiorari, however, that "he was charged with two offenses on the same night and alleges that if he was guilty he was guilty of only one offense of speeding upon the public streets of Cartersville . . and respectfully insisted of the court that he could not be guilty of but one charge for speeding under the evidence given against him upon the trial of the case." Realizing as we do that the rules of practice in the inferior courts do not require the same formality or the niceties of pleading as those of the superior courts, we have construed the defendant's allegation, that he insisted of the court that he could not be guilty of but one charge of speeding under the evidence given against him, as a plea of former jeopardy or autrefois convict. The question remaining then is whether the defendant's speeding, which he admitted, constituted one or two offenses, or, in other words, was there an identity of offenses? The only evidence offered on the trial was that of policeman Westbrook, corroborated by another officer: "I saw the defendant, James Wiley, driving his automobile in the city limits of Cartersville and when he speeded up I followed him in the patrol car, he outran me and got away and my speedometer showed 85 miles per hour and I was never able to catch up with the defendant and lost sight of him. While we were still looking for him and about 15 minutes later we again found the defendant and recognized him driving the same automobile at which time he was again driving in excess of 25 miles per hour within the city limits of the City of Cartersville. We were never able to catch him at this time, and he was later apprehended and told to appear in Police Court." The question of identity of offenses is for the jury where only a question of fact is involved, Williams v. State, 8 Ga. App. 583, 585 ( 70 S.E. 47), and we think that from the above quoted evidence the recorder, sitting as judge and jury, could have inferred that the defendant was guilty of speeding on two different, separate, and distinct occasions fifteen minutes apart. See Rex v. Birdseye, 172 Eng. Rep. (full reprint) 386, cited in Crumley v. Atlanta, 68 Ga. App. 69 ( 22 S.E.2d 181). If there was an identity of offenses in fact, the defendant can not now be heard to complain for he offered no evidence whatsoever in the recorder's court to establish this fact.
The judge of the superior court, therefore, did not err in refusing to sanction the petition for certiorari which complained of the judgment only on the grounds that it was contrary to law and without evidence to support it. Neal v. Dublin, 25 Ga. App. 484 ( 103 S.E. 736); Smith v. Carrollton, 103 Ga. 577 ( 30 S.E. 267); Hicks v. Hazlehurst, 14 Ga. App. 813 ( 82 S.E. 354); Peek v. Atlanta, 19 Ga. App. 141 ( 91 S.E. 231); Little v. Jefferson, 9 Ga. App. 878 ( 72 S.E. 436).
Judgment affirmed. Gardner and Townsend, JJ., concur.