Moore v. State , 64 Ga. App. 171 ( 1940 )

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.

DECIDED OCTOBER 23, 1940. REHEARING DENIED DECEMBER 20, 1940. The accused was indicted under Code, § 89-9907, for malpractice in office. Upon the call of the case for trial he presented a timely plea in abatement and a motion to quash the indictment. Ground 3 of the plea and motion reads as follows: "The indictment should be abated and quashed for the further reason that it is one of those indictments wherein the law requires that before it can be returned at all it must be served upon the defendant, a copy of it to be served upon the defendant, and he given the opportunity to appear before the grand jury and testify himself, and to bring his witnesses, and cross-examine the witnesses who are there against him; and this indictment shows on its face that there was no such opportunity given to this defendant, for the reason that the notice itself is in the following language: ``The within and foregoing indictment is to be laid before the grand jury of Clayton County at the November term, 1939, on Tuesday, November 28, 1939, at nine o'clock a. m., for their consideration and action thereon. Take due notice and govern yourself accordingly. This November 27, 1939. Roy Leathers, Solicitor-General.' The following entry is on that indictment: ``I have this day served the defendant H. Grady Moore with a copy of the foregoing indictment together with the notice thereon, by leaving a copy of the same with the defendant.' [The entry of service is not signed by any one]. This indictment was served on the defendant on the 27th day of November, 1939. The defendant was at that time physically unable to attend court and was on the following day physically unable to attend court. Nevertheless, the indictment was laid before the grand jury on the following day and was returned without the defendant ever having had an opportunity to appear before the grand jury as provided by law." A general demurrer to the foregoing ground of the plea in abatement was sustained. General and special demurrers to the other grounds were sustained and the plea was overruled. To that judgment the defendant excepted. The defendant also excepted to the judgment overruling his general and some special demurrers to the indictment.

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, 45 Ga. 555,557, the supreme Court said: "The whole of this provision for the prosecution of public officers for malpractice indicates the intention of the legislature that the proceedings shall be guarded with more than ordinary strictness. The accused is entitled to notice of the charge, and to a copy of the bill of indictment, before the bill is found. He has, too, a right to go before the grand jury, to cross-examine the witnesses, and perhaps to bring forward matters in explanation and defense." The foregoing ruling in that case was quoted approvingly by this court in Morris v. State, 59 Ga. App. 804 (2 S.E.2d 240). The statement in Code, § 89-9908, that the defendant and his witnesses "shall have the right of appearing before and being heard by the grand jury," obviously means that the accused must be given a reasonable opportunity, a reasonable time, to get his witnesses and to appear with them before the grand jury. The section (89-9908) should be given a construction that will make it effective, rather than one which would defeat the intent of the legislature. Under the statements of fact and the allegations of the plea in abatement, was the accused given such an opportunity? We think that this question, if the allegations of the plea had been supported by evidence, should have been submitted to the jury, and that the dismissal of the plea on general demurrer was error. In our opinion, the sustaining of the demurrer to the other grounds of the plea and motion to quash was not error. The error pointed out rendered the further proceedings in the case nugatory.

Judgment reversed. Gardner, J., concurs. MacIntyre, J., dissents.