Finnegan v. State , 57 Ga. 427 ( 1876 )

Warner, Chief Justice.

The defendant was indicted for the offense of murder, and on the trial therefor, was found guilty. A motion for a new trial was made on the various grounds of error alleged therein, which was overruled by the court, and the defendant excepted.

It appears from the record and bill of exceptions, that when the defendant was arraigned on the bill of indictment charging him with the offense, he filed a plea in abatement thereto, in which he alleged that in May, 1875, the superior court of Muscogee county was adjourned by an order of the presiding judge thereof in vacation, at chambers, for the convenience of the bar; that the court met at the time appointed in the order of adjournment; that a grand jury was impaneled and the defendant indicted for the murder of Charles Wilding, tried and convicted therefor; that judgment was arrested by the court, and a new trial ordered; that the bill of indictment was nol. prosed or set aside; that at the same term of the court so convened as aforesaid, the presiding judge drew another grand jury to serve at the next November term of the court, and at the next November term, the defendant was again indicted for the murder of said Charles Wilding, by the grand jury so drawn as aforesaid. To this plea of the defendant, the counsel for the state demurred. The court sustained the demurrer, and the defendant excepted.

Was the grand jury which found the bill of indictment against the defendant drawn according to law ? The 3911th section of the Code declares that the judges of the superior, courts, at'the close of each term, in open court, shall unlock the jury box, and draw therefrom not less than eighteen nor more than twenty-three names, to serve as grand jurors at the next term of the court. The 3912th section declares that whenever, from any cause, the judge shall fail to draw a jury as provided by section 3911, it shall be the duty of the ordinary, together with the commissioners and clerk of the county, to draw grand jurors to serve at the next ensuing term of the court. Thus it will be perceived that the statute recognizes but two modes of drawing grand jurors to serve at the regular terms of the superior court; the one by the judge in open court at the close of each term thereof, the other by the ordinary, together with the commissioners and clerk of the county. When the statute declares that the grand jury shall be drawn by the judge in open court at the close of each term thereof, it must be construed to mean a legal term of the court, that is to say, a term of the court held in accordance with the laws oi the land.

The grand jury which found the bill of indictment against the defendant, drawn by the judge at the time and in the manner alleged in the defendant’s plea, was not drawn at a legal term of the superior court, according to the ruling of this court in the case of Hoye vs. The State, 39 Georgia Reports, 718, and we suppose that the verdict was set aside and the first indictment nol. prosed as alleged in defendant’s plea, for that reason. If the term of the court at which the defendant was first put upon his trial, was not a legal term of the court for the purpose of indicting and trying him for the offense charged, how did it become a legal term of the court to authorize the judge to draw the grand jury which found the bill of indictment to which the defendant pleaded on his arraignment ? To state the proposition, is to answer it. The grand jury that found the bill of indictment upon which the defendant was arraigned, was not drawn in accordance with the provisions of the act of 1873, nor does it purport to have been drawn under the provisions of that act on account of any of the special emergencies therein provided for: Code, section 3942. We do not say that if the defendant, with a full knowledge of the facts, had gone to trial without raising any objection to the indictment, that he could have taken advantage of it after verdict, but the defendant in this case did not wait and take his chance for an acquittal until after verdict; he pleaded to the indictment on arraignment, as required by the 4639th section of the Code, and in our judgment, the court erred in sustaining the demurrer to the defendant’s plea in abatement to that indictment.

Whenever the state undertakes to deprive one of its citizens of his life or liberty, it is the duty of the courts to see that it is done in accordance with the laws of the land, and not otherwise. In the administration of criminal law, judicial discretion should not be tolerated. The law, as it is prescribed by the supreme power of the state, should be the rule of conduct for the courts as well as for the citizen. Inasmuch as the defendant has not been arraigned and tried upon a legal indictment for the offense of which he is supposed to be guilty, we express no opinion in relation to the other questions raised on the argument here.

Let the judgment of the court below be reversed.

Bleckley, Judge, concurred, but furnished no opinion.