177 Ga. 881 | Ga. | 1933
Frank Johnson was convicted of the offense of murder. On the call of the case, and before arraignment, the accused filed his plea in abatement to the indictment. The plea was based upon two grounds: (a) That the grand jury which found the indictment was illegally constituted, (b) That the witnesses before the grand jury were not sworn in the manner provided by law.”
The fact upon which the first ground is based, that is that the grand jury which found this indictment “was illegally constituted,” as stated in the plea, is that the presiding judge, Hon. Malcolm D. Jones, appointed a foreman of the grand jury. It is insisted that “it was the practice” in the court and in all superior courts in this State “to allow the grand jury to select its own foreman by ballot after it had retired for that purpose, without making any suggestion as to the court’s choice for foreman and without making any appointment of a foreman.” The plea also “ avers that the laws of the State of Georgia require that the grand jury select its own foreman.”
It is not contended by counsel for plaintiff in error in their brief that there is any statute which requires the foreman to be elected by the grand jury, nor is it suggested that there is any statute forbidding the judge of the superior court to appoint a foreman. The contention of the plaintiff in error is based solely upon the practice which it is contended has always prevailed and now prevails in this State. This question has not heretofore been decided by this
In Southern Express Co. v. Maddox, 3 Ga. App. 223 (59 S. E. 821), the court dealt with the legality of a verdict where the presiding judge caused the verdict actually rendered to be signed by one of the jurors designated by the judge as foreman. The court held that such a verdict was valid and binding. In the opinion the court recognized the existing practice that when a verdict is agreed upon it should be written upon the initial pleading, dated and signed by one of the jurors as foreman, but held that “none of these details are mandatory,” and that “It is the right of each of the parties that each juror should agree to the verdict — without this it is no verdict. . . The only question is, how is it to be ascertained that the jury have agreed? . . In this State the jury may legally express their agreement through an unsigned verdict. Roberts v. State, 14 Ga. 18 (58 Am. D. 528); Harris v. Barden, 24 Ga. 72; Patterson v. Murphy, 63 Ga. 281. Even after the jury has been dispersed, the court may allow one of the jurors to sign as foreman a verdict previously rendered. Avera v. Tool, 74 Ga. 398. While the foreman is usually selected by the jury itself, there is no reason why he should not be designated by the presiding judge.” In fact the designation by the judge may in some cases amount to an economy in time. An instance of such a case is given by Judge Powell in Southern Express Co. v. Maddox, supra, based upon “an old story current in bar circles,” where, after remaining out three days, a jury came into court and announced to the judge that they had not been able to agree upon a foreman. Judge Powell concludes: “In such cases, law as well as expediency allows the judge to direct a juror to act as foreman.” According
From what has been said we think it is clear that, notwithstanding the practice, the judge of the superior court has the power to appoint a foreman of the grand jury. He may exercise that power by himself making the appointment or by requiring the grand jury to elect its own foreman. Where the latter course is pursued, it is based upon the authority delegated by the judge to the grand jury, and is equivalent to the exercise of the authority by the judge himself. Even if it had become a custom for the grand jury to elect its foreman with or without authority from the judge, “a law can not be repealed by adoption of a custom in violation of law.” Hornady v. Goodman, 167 Ga. 555 (7) (146 S. E. 173).
It is insisted that the indictment should have been quashed because the witnesses before the grand jury were sworn by the foreman appointed by the court, and not by a foreman elected by the grand jury. The decision on the question discussed above would seem to settle this question. Logically, if the appointment of a foreman by the!court is lawful, and that foreman administered the oath to the witnesses, they were sworn according to law. Moreover, the Penal Code, § 835, provides: “The foreman of each grand jury may [italics ours] administer the oath prescribed by law to all witnesses required to testify before such grand jury, and may also examine such witnesses.” It will be observed that this section does not confer exclusive or mandatory power upon the foreman to administer the oath or to examine the witnesses. That is made more apparent by reference to the statute from which the Code section is derived. That statute provides: “It shall and
In Taylor v. State, 121 Ga. 362 (49 S. E. 3 17), the court cited approvingly McGuffie v. State, supra, and said: “There is no statutory requirement that one of the grand jurors should be designated as foreman in the indictment.” There one grand juror had signed the indictment, “true bill, O. C. Bateman, foreman.” In the body of the indictment the names of the twenty-three mem
We conclude, and so rule, that a plea in abatement based upon the ground that the oaths to the witnesses sworn before the grand jury in this ease were not lawfully administered is without merit. The plea in abatement was properly dismissed.
2. The verdict is supported by evidence.
Judgment affirmed.