6 Ga. App. 428 | Ga. Ct. App. | 1909
It appears from the record that two indictments, No. 1586 and No. 1598, — had been returned by the grand jury of Cobb county against the defendant, both charging the same offense and based upon the same facts. The defendant, without being formally called upon to answer in case No. 1586, waived formal arraignment and entered a plea of not guilty upon that indictment. When No. 1598 was called for trial, he announced ready and filed a demurrer to the indictment, which was overruled. He then filed his plea of not guilty and signed a waiver of formal arraignment, and the jury was impaneled and sworn. At this point and before the introduction of any evidence, he offered a plea in abatement, which the court declined to entertain, and, therefore practically overruled. The plea in bar or abatement was based upon the ground that there was a former indictment against him, pending in the court, for the same offense charged in this indictment, to which he had filed a demurrer and had pleaded not guilty, and that, the former indictment not having been tried, he could not be prosecuted upon a subsequent indictment charging the- same offense. Attached to the plea was a copy of the former indictment. The ruling upon the plea, as appears in the record, was based upon the ground that a plea of not guilty upon indictment No. 1586, if entered, was entered when the case was not called and had not been sounded for trial, and that even if the two cases were identical, this was the first time the court had ordered the case to trial. After the overruling of the special plea, a trial was had and the defendant' was convicted. His motion for new trial was overruled, and exceptions are taken to the judgment refusing a new trial, to the overruling of the demurrer, and to the refusal to entertain the plea in abatement.