19718 | Ga. Ct. App. | Jun 27, 1929
Lead Opinion
At the January term, 1927, the defendant, Heaton, was indicted for embezzlement. He filed a plea in abatement, and, after a hearing of the plea, a verdict was directed against it, and the defendant was afterwards convicted of the charge. The case came to this court, and then went by certiorari to the Supreme Court, and the judgment was finally reversed upon the ground that the court erred in failing to sustain the plea in abatement. See Heaton v. State, 167 Ga. 147 (144 S.E. 782" court="Ga." date_filed="1928-09-22" href="https://app.midpage.ai/document/heaton-v-state-5587072?utm_source=webapp" opinion_id="5587072">144 S. E. 782); same case, 38 Ga. App. 695 (145 S.E. 534" court="Ga. Ct. App." date_filed="1928-11-14" href="https://app.midpage.ai/document/heaton-v-state-5619600?utm_source=webapp" opinion_id="5619600">145 S. E. 534).
At the January term, 1929, and after a remittitur had been returned from the Court of Appeals, reversing the judgment in said case, an'order was taken quashing the original indictment, and a new indictment was returned by the grand jury, charging the same offense. To this new indictment the defendant demurred, and also filed a plea in abatement. The court overruled the demurrer
The plea in abatement contains several grounds, but it suffices to say that they are without merit; and the controlling issue raised by the defendant’s demurrer and plea in abatement is whether the new indictment was barred by the statute of limitations. If the original indictment was absolutely void, it did not toll the statute, and the second indictment was not found within the time limit. If the original indictment was merely voidable, it did toll the statute, and the second indictment was found within the time limit.
The new indictment, after charging fully the offense in substantially the same language as the original indictment, specifically alleges that the original indictment was nolprossed and quashed by the court on the 24th day of January, 1929, on account of certain informalities in drawing grand jurors to fill the places of certain members of the grand jury who were disqualified to:act in the case; and that said original indictment “having been quashed on account of the informality herein set forth, that this [new] bill of indictment and presentment is found and presented ■within six months from the time the first bill of indictment was quashed as aforesaid.”
Section 30 of the Penal Code provides that “if the indictment is found within the time limited, and for any informality shall be quashed or nolprossed, a new indictment may be found and prosecuted within six months from the time the first is quashed or nolprossed.” The original indictment alleged that it was found within the time limit after the offense became known. So, under the above-quoted code-section, the only question is whether it was quashed for “any informality.” We think it was quashed for a mere' informality, and that therefore it was not void ab initio, but-merely voidable, and did toll the statute. The original indictment undoubtedly' alleged a crime, and alleged it was within the time limit after the offense was known; and the court had jurisdiction of the offense and the offender. The law distinctly provides that indictments may be quashed or nolprossed and new indictments found. Furthermore, neither the Supreme Court nor this court held that the original indictment was void, or that any
It is a significant fact that the defendant’s pleading sustained by the Supreme Court was a plea in abatement. If the defect in the original indictment had appeared on its face, that indictment certainly would have been subject to demurrer; and if'it' proved to be void, it could not have tolled the statute, and the second indictment would have been barred by the statute of limitations. But the defect did not appear on the face of the indictment. The indictment charged an offense, and in order to disclose the defect it was necessary to produce evidence relative to the grand jurors. A plea in abatement was filed, and Black’s Law Dictionary defines an abatement in pleading as follows: “The effect produced upon an action of law when the defendant pleads matter of fact showing the writ or declaration to be defective and incorrect. This defeats the action for the time being, but the court may proceed with it after the defect is removed, or may recommence it in a better way.” Primarily the office of a plea in abatement is to abate, rather than nullify.
In the case of the United States v. Gale, 109 U.S. 65" court="SCOTUS" date_filed="1883-10-23" href="https://app.midpage.ai/document/united-states-v-gale-90898?utm_source=webapp" opinion_id="90898">109 U. S. 65 (3 Sup. Ct. 1, 27 L. ed. 857), it was said that in certain instances the proceeding of forming the panel would be void. We quote from the decision in that case as follows: “But there is no complaint of this kind in the present i case. The complaint simply relates to the action of the court in excluding particular persons who might properly have served on the grand jury. We do not think that this vitiated all the proceedings so as to render them absolutely null and void. . . A disqualified juror placed upon the panélmay be supposed injuriously to affect the whole panel, but if the individuals forming it are unobjectionable, and have all the neces
In the instant case the court had jurisdiction of the subject-matter and of the person, and the original indictment alleged a
The court did not err in overruling the defendant’s demurrer to the second indictment, or in sustaining the State’s demurrer to the defendant’s plea in abatement.
Judgment affirmed.
Dissenting Opinion
dissenting: I have written the foregoing opinion according to the view of a majority of the court. However, my individual view is that the first indictment was absolutely void and did not toll the statute, and, therefore, the second indictment was not within the statute of limitations; and for this reason I dissent from the judgment of affirmance.