13364 | Ga. Ct. App. | Oct 5, 1922
1. “ When the accused seeks, after the finding of the indictment, to raise the objection that one of the grand jurors was disqualified propter defectum, it is incumbent upon him to show that he did not have an opportunity to raise the objection before the indictment was found.” Parris v. State, 125 Ga. 777 (4) (54 S.E. 751" court="Ga." date_filed="1906-07-03" href="https://app.midpage.ai/document/hall-v-simmons-5575130?utm_source=webapp" opinion_id="5575130">54 S. E. 751), and citations. The above ruling is even more strictly applied where the objection is propter affectum. Betts v. State, 66 Ga. 508 (6), 514; Nichols v. State, 17 Ga. App. 593, 606, 607 (87 S.E. 817" court="Ga. Ct. App." date_filed="1916-02-04" href="https://app.midpage.ai/document/nichols-v-state-5608334?utm_source=webapp" opinion_id="5608334">87 S. E. 817), and authorities cited.
(a) In the instant case the defendant filed d plea in abatement, setting up that the foreman of the grand jury that returned the special presentment against him was disqualified propter affectum. The court’s order finding against the plea was as follows: “ On hearing had before the court, without a jury, on the within plea in abatement, testimony having been heard, and argument had, the court hereby finds against the said plea in abatement, . . and because also defendant had opportunity if he desired to challenge the competency and qualification of the [grand] juror before the indictment was returned.” The finding of the trial court that the defendant had opportunity to challenge the grand juror before the indictment was returned was authorized by the evidence adduced upon the hearing of the plea, and is therefore conclusive upon this court; and, under the above ruling, it cannot be held that the finding against the plea in abatement was error.
2. The court did not err in overruling the demurrer to the indictment.
(a) Conceding, but not deciding, that the indictment in this ease shows upon its face that it was drawn under section 270 only of the Penal Code of 1910, punishment for a violation of that section is prescribed by section 271. Payne v. State (this case), 153 Ga. 882 (113 S.E. 446" court="Ga." date_filed="1922-08-17" href="https://app.midpage.ai/document/payne-v-state-5584088?utm_source=webapp" opinion_id="5584088">113 S. E. 446).
(b) The office of a policeman of the City of Atlanta is “an office of government or of justice,” and such a policeman is “ an officer of this State,” within the meaning of sections 270 and 271 of the Penal Code of 1910, and he is subject to be indicted under such sections for the offense of bribery. Payne v. State, supra.
(c) Thére is no merit in any of the other grounds of the demurrer. See,
3. The evidence, direct and circumstantial, amply authorized the defendant’s conviction, and none of the grounds of the amendment to the motion for a new trial shows reversible error.
Judgment affirmed.