187 Ga. 401 | Ga. | 1939
If the relationship set out in the plea in abatement constitutes a disqualification “propter defectum,” the plea was good, and it was error to dismiss the plea. On the other hand, if it was a disqualification “propter affectum,” the plea in abatement would not lie, and it was properly dismissed. The former stands upon grounds that render the juror disqualified to serve as such in any case, and the latter upon grounds that disqualify him only in the case involved. See 28 C. J. 770; Wright v. Davis, 184 Ga. 846 (193 S. E. 757). It is not contended that the jurors whose competency is attacked were disqualified to serve as such in said court, except upon the ground of relationship that disqualified them in the instant case. It follows that the disqualification, if any, was one “propter affectum,” and, as has been held by this court, the plea in abatement could not be maintained. Bitting v. State, 165 Ga. 55 (139 S. E. 877). But counsel for the plaintiff in error contend that by reason of the provision of the act approved March 28, 1935 (Ga. L. 1935, p. 396), that “all judges, grand and trial jurors in the courts of this State, shall be disqualified to preside, act, or serve, in any ease or matter, when such judge or juror is related by consanguinity or affinity to any party interested in the result of the case or matter, within the sixth degree,” the relationship of a grand juror who returns an indictment constitutes a legal basis for a plea in abatement or motion to quash the indictment, and that the ruling in the Bitting case, supra, is not now controlling. We can not agree to this contention; for, as we construe it, the act cited does not seek to change the law on the subject otherwise than to reduce the degree of relationship which disqualifies a grand juror, from the ninth to the sixth degree. It does not purport to say how such disqualification
The demurrer attacking the statute (Code, § 13-9910) because of uncertainty and indefiniteness is without merit. The due-process provision of the constitution of the United States, fourteenth amendment (Code, § 1-815), and in art. 1, sec. 1, par. 3, of the State constitution (§ 2-103), is not violated by the statute here involved, for any of the reasons assigned in the demurrer. The crime there defined is described with sufficient particularity to enable one working in a bank to know when he is violating it. This is especially true when the statute requires proof not only of the acts or failures to act therein named, but also an intention to defraud, before a conviction can be had for violating the statute. In Omaechevarria v. Idaho, 246 U. S. 343 (38 Sup. Ct. 323, 62 L. ed. 763), a statute of the State of Idaho making criminal the grazing of sheep on a Federal domain or range, previously occupied by cattle, or usually occupied by cattle raisers, was attacked as repugnant-to the due process guaranteed by the fourteenth amendment of the Federal constitution, in that it failed in definiteness and was vague and uncertain; that it failed to provide for the ascertainment of the boundaries of the range or the method of determining what length of time is necessary to constitute a prior occupation, a usual one within the meaning of the statute. In the opinion delivered by Mr. Justice Brandéis it was said, “It is also urged that the Idaho statute, being a criminal one, is so indefinite
The evidence failed to support the verdict. It in no wise showed any dirty of defendant to make the entry omitted, or that one charged with such duty knowingly failed to perform the same, with the knowledge and approval of defendant. The evidence is fatally lacldng in both of these respects. The evidence showed conclusively that it was no part of defendant’s duties in said bank to make book entries of any kind, consequently none of his duty to make the entry involved here. It also showed conclusively that no other employee of said bank knew of the omission or failure to make such entry, thus making it impossible for the defendant to be guilty of aiding or abetting, or even concurring in the omisfeion
Since the judgment is reversed upon the general grounds, it is not necessary to pass upon the special grounds of the motion for new trial. Judgment reversed.