37 Ga. App. 144 | Ga. Ct. App. | 1927
Lead Opinion
The defendant was tried under an indictment charging him in the first count with simple larceny of an automobile, and in the second count with having converted the automobile to
Judgment reversed.
Dissenting Opinion
dissenting. The motion in this case was to set aside a judgment based upon an alleged void verdict. In McDonald v. State, 126 Ga. 536 (55 S. E. 235), the motion was to set aside a judgment based upon-an alleged void indictment, and-it was there distinctly held that the motion to set aside was nqt the appropriate remedy, and that the motion was properly overruled by the trial judge. That ruling was followed by this court in Gravitt v. State, 36 Ga. App. 301 (136 S. E. 829). The ruling made in those two cases is controlling in the instant case, since there is no essential difference between a motion to set aside a judgment based upon a void indictment and a motion to set aside a judgment based upon a void verdict. The reason why a judgment founded upon a void indictment can be arrested is, as was said by Air. Justice Cobb in McDonald v. Sowell, 129 Ga. 242 (58 S. E. 860, 12 Ann. Cas. 701), that “the verdict and judgment in such a case is an absolute nullity." In each of the two cases cited in the majority opinion in the instant case, the motion was to arrest the judgment, not to set it aside.