160 Ga. 292 | Ga. | 1925
The grand jury drawn for service at the August term, 1923, of Walton superior court, the same having been duly and legally impaneled, sworn, organized, and charged by the court, and, after having discharged the duties incumbent upon it at said term, having been excused by the court from further service at said tetm at the conclusion of its labors, could be required by the judge of said court to attend at the November term, 1923, of said court to perform such duties as might be required of it at the November term, 1923, of said court. Such procedure is specially provided for by section 3 of the act of July 28, 1921, providing for holding fou'r terms a- year of Walton superior court, prescribing the time for holding the same, and further prescribing when and how grand juries should be required -to attend said court. Acts 1921, p. 135. The grand jury at the August term, 1923, of said court, being required by the judge to attend at the November term, 1923, thereof, was a legally constituted grand jury and was au-. thorized to return indictments. Being thus legally convened at said November term, 1923, of said court, it was not a body with “no more authority to find bills of indictment than the same number of
Nothing in Tompkins v. State, 138 Ga. 465 (supra), is in conflict with what is ruled in this case. In that case this court was dealing with a statute providing for four terms of Laurens superior court to be held upon the fourth Monday in January, April, July, and October. That act provided that grand juries could only be drawn for the spring and fall terms of that court. A grand jury had been drawn, impaneled, and sworn for the January term, 1912, of that court, and, after having served at that term, was excused and discharged. In vacation thereafter the judge, instead of drawing, as required by law, a grand jury to serve at the April term, 1912, of said court, passed an order requiring the grand jury which had served at the January term of the court to attend as a grand jury at the April term. This action of the judge was not only without authority of law, but in the face of the statute which required the judge to draw a grand jury for the April term of that court. The judge having no authority to require the grand jury at the January term to attend at the following April term, this court properly held that these grand jurors, who had served at the January term, were ineligible to serve at the April term under
Under the above ruling, it becomes unnecessary to answer the second and third questions propounded by that court.
I am of the .opinion that the body of men called together for service at the November term of court was not a legally constituted grand jury, and were not authorized to return indictments, and that such indictments were null and void. In Tompkins v. State, 138 Ga. 465 (supra), this court held: “By the Penal Code, § 824, grand jurors who have served at one regular term of the superior court are declared ineligible for jury duty at the next succeeding regular term, (a) In suph a case a challenge to the array of the grand jury, made before the indictment is found, should be sustained by the trial judge. (&) Likewise a plea in abatement, filed after the indictment is found and before arraignment of the defendant, based on substantially the same ground, should be sustained.” In the opinion it was said: “Thus we arrive at the conclusion, either that the grand jury was not lawfully impaneled at the January term, or that it was. If it was not lawfully impaneled then, it has never been impaneled, because there is no claim that the jurors were reimpaneled, or resworn, at the April term, and grand jurors who have not been lawfully impaneled or sworn have no more authority to find bills of indictment than the same number of citizens outside of the court-house — they are not a grand jury in law. Or else, if they were lawfully impaneled and lawfully served at the January term, under the express provisions of the general law they could not serve at the next succeeding term. The proviso of the act of August 18, 1911, says, ‘unless in the discretion of the presiding judge it shall be deemed expedient to call a special session of the grand jury at some other term.’ What does this mean ? Does it mean that, after the grand jury has been lawfully impaneled at the spring and fall terms, the judge may call a special session of them at some other term of the same character? Or does it mean that he may call a session of
The act of 1921 (Ga. L. 1921, p. 135), providing for holding four terms a year of the superior court of Walton County, to pro
No constitutional question was raised in the Tompkins case, 138 Ga. 465 (supra), and none is raised by the record in the present ease. In the Tompkins case the reference to the constitution is only mentioned by way of argument, and to point out a well-recognized rule of construction, that if an act of the legislature can properly be given one construction which upholds its legality and another which would render it illegal, the former is rather to prevail. All discussion and citation of authorities in the majority opinion in the present case, on the basis that a constitutional question is raised by the record, is beside the question. In the Tompkins case the court merely construed the act under consideration and the order of the judge thereunder. Here we are construing the act of 1921, supra, which declares that there shall be only “a grand jury for the February and August terms of court,” and the
It will be observed from reading the act of 1921, requiring á grand jury to be drawn for the February and August terms of the superior court of-Walton County, the same grand jury may also be required to attend at the May and November terms, or either of them, if the business of the court should require it. This provision of section 3 of the act does not and can not apply to any other grand jury in any other county of the circuit, or any other county within the State; and therefore I reach the conclusion that the act can not be general in its operation, but is only special or local in its application, and can not supersede the plain terms of the statute which declares that no grand juror shall serve at the next succeeding term of court to that at which he has already served as a grand juror. In my opinion the case comes clearly within the ruling made in the Tompkins case, supra, which is a full-bench decision. The case of Burge v. Mangum, 134 Ga. 307 (supra), is distinguishable from the present case.
In the case of Reich v. State, 53 Ga. 73 (2) (supra), this court held that “It is a good special plea to an indictment, if made on arraignment, that one of the grand jurors who found the indictment or special presentment was an alien and not qualified to sit as a grand juryman.55 In delivering the opinion of the court McCay, Judge, said: “We think the plea that one of the grand jurors was not a citizen is a good plea. Section 3916 of the Code clearly contemplates that a grand juryman must be a citizen, and whilst the constitution does not, in terms, require it, and only uses the word ‘persons,5 yet there is nothing in this inconsistent with the Code, and this has long been the law of this State. It was also the common law: 1 Chitty C. L. 307; 5 Bacon Ab. 312; 1
In Lascelles v. State, 90 Ga. 347 (3) (supra), it was held: “A plea in abatement to a bill of indictment, or a motion to quash the bill, is not sustainable which sets up that a member of the grand jury that found the bill was related by affinity to the prosecutor within the fourth degree, his wife being a second cousin of the prosecutor. Such relationship, according to the settled law, belongs to the same class of causes of challenge as does the fact of service by the juror on a previous trial or investigation of the same case or matter in controversy.” In the opinion, delivered by Mr. Justice Lumpkin speaking for the court, it was said: “Another objection raised by motion to quash and plea in abatement was, that a member of the grand jury that found the bill was related by affinity to the prosecutor within the fourth degree, his wife being a second cousin to the prosecutor. According to the principle ruled in former decisions of this court, a plea in abatement or motion to quash, based upon objections of this character, is not sustainable, at least if the accused has had an opportunity to make the question by challenge before the finding of the indictment. Betts v. State, 66 Ga. 508; Williams v. State, 69 Ga. 12; Lee v. State, Id. 705; Turner v. State, 78 Ga. 174. In this case the accused was apprised by the warrant for his arrest, several days before the indictment was found, that the case would go before the grand jury, and it is not shown in his plea or motion to quash that he had no opportunity to make the objection by challenge. The case of Reich v. State, 53 Ga. 73, is distinguishable from this case and the others cited. There the grand juror was an alien, and was therefore incompetent to serve in any case. Not being a citizen, he lacked one of the necessary qualifications prescribed by law.
In Edwards v. State, 121 Ga. 590 (2) (supra), it was held: “There is no error in overruling a plea in abatement to d bill of indictment, based on the ground that one of the grand jury that found the bill had not resided within the county for the period of six months, when it is not made to appear that the accused did not have' full notice and opportunity to make the question by challenge before the finding of the indictment. Lascelles v. State, 90 Ga. 347; Fisher v. State, 93 Ga. 309.” See also Folds v. State, 123 Ga. 167 (2) (supra). In Parris v. State, 125 Ga. 777 (3)
It follows from what has been said above, and the eases cited, that where, in the circumstances stated in the question propounded by the Court of Appeals, the accused files a plea in abatement and attacks such an indictment as void, it is necessary to allege in the plea that the accused had no opportunity to file a challenge to the array before the return of the indictment.
I am also of the opinion that on a plea in abatement, showing that the grand jury returned against the accused a “special presentment” it is not necessary that the plea allege that the accused “had no opportunity "to file a challenge to the array of the grand jury and that he could not have made the challenge before the return of the indictment,” or that “he did not know, and could not have known, that he would be indicted at such term by such grand jury.” Reich v. State, 53 Ga. 73 (2) (supra).