12 S.E.2d 410 | Ga. Ct. App. | 1940
Lead Opinion
Under the Code, § 89-9908, before an indictment charging the offense of malpractice in office is found true by the grand jury, a copy of the indictment must be served on the accused; and he and his witnesses must be given a reasonable opportunity of appearing before, and being heard by, the grand jury.
The Code section (89-9907) under which the defendant was indicted is followed by section 89-9908 which reads as follows: "An indictment under the preceding section shall specially set forth the merits of the complaint, and a copy thereof shall be served on the defendant before it is laid before the grand jury. The prosecutor and the defendant, andtheir witnesses, shall have the right of appearing before and being heardby the grand jury. . ." (Italics ours.) In Oliveira v. State,
Judgment reversed. Gardner, J., concurs. MacIntyre, J., dissents.
Dissenting Opinion
I think the case should be affirmed. The Code, § 89-9908, provides that a copy of the indictment for malpractice "shall be served on the defendant before it is laid before the grand jury. The prosecutor and the defendant, and their witnesses, shall have the right of appearing before and being heard by the grand jury. The indictment, if found true by the grand jury, shall, as in other cases, be tried by a petit jury." The service required by this section was made. The ground of the plea in abatement on which the majority opinion is based merely alleged that the defendant was physically unable, on account of such physical condition, to appear before the grand jury both on the day that he received notice of the hearing to be held before the grand jury and on the next day when the indictment was found. It does not set forth affirmatively that the defendant was unable to give the grand jury notice of his condition, nor does it show that he had a meritorious showing which, if it had been made before the grand jury, would probably have eventuated in a finding different from the one made. I therefore think the demurrer to the plea in abatement was properly sustained. Even before the act of 1895 (Ga. L. 1895, p. 45), now Code, § 110-404, the court recognized and enforced a well-settled rule that it would never disturb a verdict, judgment, or a finding, unless "there ought be another hearing that would probably eventuate differently from that already had." Cotton *174 States Life Insurance Co. v. Edwards,
The practical effect of the ruling by the majority of this court is to allow the accused not only to ignore the grand jury but to unnecessarily impede it in the discharge of its duty. The grand jury was entitled to notice of his sickness in the absence of some reason why he was unable to give them notice of his condition, so that they could make an investigation of their own and ascertain then and there his true condition, and, if the facts so warranted, continue the case without going through the useless form of finding the indictment. Under the majority ruling the accused, by merely showing that he was too sick to attend the hearing before the grand jury, would prevent the grand jury from deliberating on his case, irrespective of whether or not he could show he would have exercised his privilege, if he had been physically able, and appeared before the grand jury and presented any substantial reason why the indictment should not be found. Whether sick or well, he may have preferred to refrain from going before the grand jury. Under the majority holding the grand jury would never be reasonably *175 safe in proceeding to indictment for this offense, even after notice had been given to the accused to appear, according to the terms of the statute, unless they first sent forth and found out whether the accused was in good health. It seems to me it would be useless to abate or quash the indictment here and go through another hearing before the grand jury, and have another trial before a petit jury, when there is nothing in the plea in abatement to affirmatively show that if another hearing was had before the grand jury the defendant could show any substantial reason why the indictment should not be found as true. Or, even if he (whether sick or well) had such a reason (whether meritorious or not), yet he may have preferred to refrain from exercising his privilege of urging it before the grand jury, and preferred to wait and disclose and urge his defense for the first time at the regular trial. The writer thinks it would be preferable to require the accused to show in his plea in abatement that if the court did what he sought to have done it would not be doing a useless thing.