Head v. State , 32 Ga. App. 331 ( 1924 )

Bloodworth, J.

We will discuss only the demurrer to the indictment. The demurrer alleged that the grand jury had “never found the same to be true, but on the contrary have found the same Not True/ and therefore the purported bill of indictment is void.” The court was asked to quash the indictment. An endorsement on the back of the indictment shows that it was “returned into open court by the grand jury.” On the back of the indictment the following endorsements also appear: “The State vs. Leonard Head. Murder. J. M. Boyd, Foreman pro tem. True bill. E. S. Griffith, Solicitor-General. Special presentment.” It will thus be seen that the entries on the indictment show that the grand jury did find the bill true, and it was regularly returned into court. “In the case of Barlow v. State, 127 Ga. 58 (56 S. E. 131), Justice Lump-kin quoted with approval the statement made in Williams v. State, supra (107 Ga. 724), that The real entry which is necessary to give the paper authenticity as an indictment by the grand jury is the endorsement of that action upon the paper, signed by the foreman of that body.’ ” Willerson v. State, 14 Ga. App. 455 (81 S. E. 392). That on the back of the endorsement both the words “true bill” and “special presentment” appear can make no difference in this case. In Switzer v. State, 7 Ga. App. 10 (65 S. E. 1081), this court, speaking through Chief Judge Hill, said: “The distinction between a special presentment and a bill of indictment, even under the old practice, according to Mr. Bishop, in his work on Criminal Procedure (§ 136), was very thin; and even this distinction has been abolished in practice for many years in this State. The solicitor is not required to frame any indictment on a special presentment, but the special presentment of the grand jury is returned into court, and upon it the defendant is arraigned and tried. In other words, it has the same force and effect as a bill of indictment. The only formal difference.between the two is that a prosecutor prefers a bill of indictment, and a special presentment has no prosecutor, but, in theory, originates with the grand jury. Even this difference between a bill of indictment and a special presentment no longer exists, and the finding of the grand jury is prepared by the solicitor-general and called a bill of indictment, or a special presentment at his will.” In Barlow v. State, 127 Ga. 58 (56 S. E. 131), the first headnote is as follows: “In this State all special presentments of the grand jury charging defendants with violations of the penal laws are treated as indictments.” See also Penal Code (1910), § 956. Nor does it make any difference that the name of the foreman was written above the words “true bill” or “special presentment.” See Barlow v. State, supra. Nor does it matter that the indictment is signed by a member of the grand jury as foreman pro tern. In White v. State, 93 Ga. 47 (2) (19 S. E. 49), it is held: “When it appears upon the face of an indictment that a named grand juror served as 'foreman pro tern.’, and the finding of 'true bill’ was signed by him as such, the presumption is that the juror was properly serving as foreman in that case.” Indeed, in the brief of counsel for plaintiff in error, they say: “It is true that the statement is first made on the indictment that it is found to be true.” The only insistence by counsel for plaintiff in error is that the grand jury had not found the bill true because it Avas returned into court “with the following notation made thereon or attached thereto: 'We, the grand jury for the March term, 1923, find bill against Leonard Head true, with recommendation that he be tried for manslaughter instead of murder. This recommendation made to save the drawing of another bill charging manslaughter instead of murder. J. M. Boyd, Foreman pro tern.’ ” The certificate of tire clerk shows that the above recommendation of the grand jury was not written on the indictment, but was “attached to said bill of indictment by the grand jury.” As shown above, the indictment in this case was found true and regularly returned by the grand jury, and nothing contained in the paper attached to it by the grand jury would invalidate it. See Edwards v. State, 121 Ga. 590 (1) (49 S. E. 674). The demurrer was properly overruled.

Judgment affirmed.

Broyles, G. J., and Lulce, J., concur.