246 Ga. 426 | Ga. | 1980
The defendant appeals from his convictions of aggravated assault and murder, and his concurrent five-year and life sentences. The sole error enumerated is the denial of the appellant’s motion challenging the array of the grand jury, which motion was filed after the return of the indictment and 30 minutes prior to the trial.
“A challenge to the array of grand jurors is waived unless timely filed. As stated in Sanders v. State, 235 Ga. 425 [(219 SE2d 768) (1975) (cert. den. 425 U. S. 976 (96 SC 2177, 48 LE2d 800) (1976))]: ‘In order for such a motion to be entertained by the trial court, it must be
The appellant complains that a pre-indictment challenge to the array was impossible because neither he nor his counsel knew before the indictment was returned that the incompetent grand juror
The record shows that the appellant’s counsel was retained at least one week prior to indictment; that he presumed that the Crawford County Grand Jury then in session would indict the appellant; that he came to Crawford County one week prior to indictment and discussed the question of bond with the trial judge, but apparently made no effort to learn who was on the grand jury; that about one week prior to calendar call he was given a copy of the indictment, which showed on its face that a Mr. Cochran, known to him to be a member of the county board of education, was one of the grand jurors; and that under the local court rule all pre-trial motions were to be filed by calendar call. The above shows that counsel had both actual and constructive knowledge of the composition of the grand jury so as to be able to file an objection thereto prior to the indictment.
Regarding the appellant’s contention that he was nevertheless entitled to challenge the array by a plea in abatement at or before
It was not error to deny the motion challenging the array.
Judgment affirmed.
'Mr. Robert L. Cochran, a member of the Crawford County Board of Education, who was incompetent to serve on the grand jury under the provisions of Code § 59-201.