Hammond Daniels was convicted, in the county court,, for unlawfully selling malt and intoxicating liquors. He carried the case, by certiorari, to the superior court, where to the answer to the writ he filed the following exceptions: “First: Because the testimony of Charles Davis, one of the witnesses in the trial of the case in the court below, is not stated, but merely the judge’s deductions therefrom. Second: The statment of Hammond Daniels is neither given in full nor in substance. Third: Because the said judge presiding does not reply to the allegations and assignments of error in said petition for certiorari, that the same may be duly presented to this honorable court. Fourth : Because said answer does not give to this court a full and complete history of the case as tried by him, that the same may be duly presented to this honorable court.” These exceptions were overruled, and the accused excepted to the ruling. The answer was then traversed, and upon the trial of the issue so made the judge found against the traverse. The accused also excepted to this ruling. The certiorari was then heard and overruled, and the plaintiff in certiorari again excepted.
1. The judge of the superior court rightly overruled the first,, third, and fourth exceptions to the answer. An examination of the answer shows that it is not subject to the first exception. The third exception is too general and indefinite, in that it does not point-out wherein the answer does not reply to the allegations and assignments of error in the petition for certiorari. The fourth exception is also too general and indefinite. It does not point out wherein the answer fails to give a full and complete history of the case. While the answer to the writ of certiorari must reply specifically to the allegations in the petition, exceptions to the answer muse not only be in writing, but must specify the defects therein. Civil Code, *21§§ 4646, 4647; Franklin v. Kaufman, 65 Ga. 260. Apparently the answer, read in connection with the allegations of the petition for certiorari, is, save as to the defect specified in the second exception sufficently full and explicit.
2. The only reference made in the answer to the statement of the accused was that “ The statement of the defendant as against positive statements under Oath was not considered worthy of belief.” The petition .fully set forth what was claimed to be the statement of the accused. We think that the second exception, to the effect that the answer did not set out any statement of the accused, was sufficiently specific and should have been sustained, and the judge of the county court ordered to perfect his answer by setting out the statement of the accused. Whatever may have been the opinion of the county judge as to the credit to be given to the statement, the accused had the right to have that question passed upon by the judge of the superior court.
3. One of the grounds of the traverse was as to the testimony of Henry Kelly, upon which the State relied for a conviction. If the testimony of this witness was as set out in the answer, it was amply sufficient to show the commission of the offense by the accused. On the other hand, if his testimony was as set out in the petition for certiorari, which the traverse alleged truthfully and fully set forth his testimony, the conviction was unauthorized. Upon the hearing of the traverse, this witness testified that his testimony upon the trial in the county court was correctly set out in the petition, •except in two particulars, which were not very material, and that he did not testify as set forth in the answer. Kelly was the only witness who testified upon the trial of the traverse; and as his testimony. then given was not contradicted, we think the judge erred in finding against the traverse.
Judgment reversed.
By five Jiostices.