Bird v. The State Of Ga.

• Decision Date: 31 January 1875
• Citation: 53 Ga. 602
• Parties: Tom. Bird, plaintiff in error. v. The State of Georgia,defendant in error.
• Court: Georgia Supreme Court

53 Ga. 602

Tom. Bird, plaintiff in error. v. The State of Georgia, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1875.)

Page 602 Criminal law. Continuance. Jury. Practice in the Superior Court. Evidence. Before Judge James Johnson. Muscogee Superior Court. November Term, 1874.

Tom. Bird was placed on trial for the offense of burglary. The defendant moved for a continuance on the ground that he had been confined in jail since October, 1873; that he had subpoenaed a witness by the name of Driver Reid, who had theretofore resided in Tuskegee, Alabama, but had recently moved to Wacoochee Valley in the same state; that the witness could not attend court on account of sickness in his family;that he expected to have him present at the next term; *that he expected to establish by him an alibi, stating the facts.

This motion was supported by the affidavit of Hamp Bird, the brother of the defendant. Upon cross-examination, he stated that a continuance had been allowed the defendant at the last term, in part, on account of the absence of the same witness; also, that the same facts could be shown by him, (Hamp Bird,) and his wife.

As an additional reason for the continuance, counsel for the defendant stated in his place, that he had just been informed that one Mike Anderson, one of the grand jurors who found the bill under which the defendant was to be tried, was not a citizen of the United States, but was a subject of Great Britain; that he desired to put in a special plea in bar, and to that end, wished time to examine the records and to prepare testimony.

The court overruled the motion because it believed it to have been made for delay, and defendant excepted.

The defendant then pleaded specially in bar, that the grand jurors impanneled at the last term of the court, who preferred the indictment, were not sworn.

Issue being formed upon this plea the court directed the solicitor general and the clerk to be sworn. They testified that the grand jurors were qualified in the usual manner. The minutes of that term also showed that "the grand jury retired to their room and selected William H. Hughes as their foreman, returned into court and were duly impanneled, to-wit: John H. Meyer, " etc.

The court, without the intervention of a jury, ordered the plea to be stricken, and the defendant excepted.

The defendant then pleaded that Mike Anderson, one of the. grand jurors who preferred the indictment, was not a citizen of the United States, but was a subject of Great Britain.

Upon issue being formed on this plea, the court ordered it to be submitted to a jury. Evidence was introduced, the jury charged, and a verdict returned against the plea. Various exceptions were taken to the rulings made on this collateral "trial, but they are immaterial here as this court, in view of the further history of the case, refused to pass on them.

The defendant pleaded further that at the November term, 1873, a true bill was found against him for the same offense as that with which he is now charged; that he was convicted thereon, but upon writ of error to the supreme court, (see 50 Georgia Reports, 585,) the judgment was reversed. That at the May term, 1874, when the judgment of the supreme court was made the judgment of the superior court, the said bill of indictment, upon motion of the solicitor general, was nol. prossed, the defendant objecting thereto, there being no fatal defect therein. That the defendant thereupon demanded his release, which was refused by the court. That at the same term, the grand jury found the true bill now being prosecuted, charging him with the same offense as that for which he was tried at the November term, 1873; wherefore he prays that he may be discharged and go hence without a day.

Upon demurrer this plea was stricken, and the defendant excepted.

The plea of not guilty was then filed. The jury found to the contrary.

Error is assigned upon each of the above grounds of exception.

G. E. Thomas; Reese Craweord, for plaintiff in error.

W. A. Little, solicitor general, for the state.

Trippe, Judge.

1. It is sufficient to say upon the first point that the court did not abuse its discretion in refusing the continuance.

2. The minutes of the court showed that the grand jury who found the bill at a previous term "retired to their room, selected William H. Hughes as their foreman, returned into court and were duly impanneled, to-wit: " and then the names of the jurors were set forth in full on the minutes. The issue made by the plea on this point could be determined by the minutes, and there was no error in the...