33 S.E.2d 728 | Ga. Ct. App. | 1945
1. Where a grand juror is related to the defendant within the prohibited degree, his disqualification is propter affectum and such disqualification of one of eighteen members who composed the grand jury at the time the true bill was found would not be a valid ground for a plea in abatement to the indictment. Bitting v. State,
2. Section 59-202 of the Code provides: "A grand jury shall consist of not less than 18 nor more than 23 persons."
3. The evidence authorized a finding that the true bill was found by a grand jury which consisted of eighteen members, one of whom was related to the defendant within the prohibited degree. Held: The judge did not err in overruling the plea in abatement setting forth that the grand jury did not consist of eighteen persons, as provided in section 59-202 of the Code.
4. The evidence authorized the verdict.
The material part of the testimony as it related to the plea in abatement was: "My name is Israel Ryals, and that is my name which appears as one of the eighteen grand jurors on this indictment. I served on the grand jury of Long County at the March term, 1944, of Long superior court. I did not serve as a grand juror for the finding of this bill for the reason that I was disqualified from doing so by relationship, I being the uncle of R. C. Davis, and a great uncle of Clary Davis and the wife of John McQuaig. I told the foreman of the grand jury that I was disqualified by relationship to the defendants and could not serve. He said that it did not matter as the relationship could not be complained of by the defendants. I remained in the grand-jury room when this case was under investigation and the bill voted on. I heard the evidence and the witnesses sworn. . . I took no part in the investigation of the charge in this indictment, asking no questions, nor having anything to say. I did not vote for or against finding the bill, since I was disqualified to act." H. C. Long, a witness for the State, testified: "My name is H. C. Long, and I was the foreman of the grand jury at the March term, 1944, of the superior court of Long County, I remember the investigation of the charge in this bill of indictment. . . Mr. Israel Ryals told me he thought that he was disqualified on account of kinship to the defendants, but I told him that I did not think that it was close enough to disqualify him, and anyway the defendants *349
could not complain of a juror kin to them, and he sat down. He remained in the room and took part in the deliberations. I thought that he acted, since he remained in the room. I would not say that he asked any questions about the matter, or voted for or against the indictment. I do [not] know whether he did or not, and would not say that he did."
The defendant contends that the grand jury which indicted him consisted of less than eighteen persons in violation of the Code, § 59-202. A judge sitting without the intervention of a jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being his duty to ascertain the truth of the case from the opinion he entertains of all the evidence submitted for his consideration. Reeves v.Columbus Electric Power Co.,
If in truth and in fact, the juror in question acted or served as one of the eighteen grand jurors in finding the bill and was kin to the defendant within the prohibited degree, nevertheless the judge would not have committed reversible error in overruling the plea in abatement to the indictment, for such disqualification of the grand juror would have been propter affectum and would not have been a valid ground for a plea in abatement to the indictment. "Nor is it good ground for a motion for new trial after verdict, even though the parties were ignorant of such defect until after the verdict. Hall v.State,
The evidence amply authorized the jury to find the defendant guilty of false imprisonment as charged in the indictment.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur. *351