Bowen v. State

• Citation: 8 S.E. 736,81 Va. 482
• Parties: Bowen v. State.
• Decision Date: 11 February 1889
• Court: Supreme Court of Georgia

8 S.E. 736

(81 Va. 482)

Bowen

v.State.

Supreme Court of Georgia

February 11, 1889

Indictment—Return—Power of Solicitor General.

The solicitor general has no legal authority to return into court a special presentment or indictment found by the grand jury, and, if no return be duly entered upon the minutes of the court at the term when the presentment or indictment was found, there is no presumption that the return was duly made. An entry at a subsequent term, without an order to make the entry nunc pro tunc, will not cure the omission to enter the return at the proper time.

(Syllabus by the Court.)

Error from superior court, Bartow county; Fain, Judge.

J. B. Conyers, for plaintiff in error. J. W. Harris, Sol. Gen., by A. S. Johnson, for the State.

Bleckley, C. J. This was a special presentment, charging Bowen with the offense of shooting at another. On his arraignment he pleaded specially that the presentment was not returned into court by the grand jury, nor by any sworn officer, but was privately handed to the solicitor general by only one member of the grand jury. The plea was demurred to, and the demurrer sustained. This is one of the grounds of the motion for a new trial. Had the minutes of the court shown that the special presentment was returned at the term at which it was found, the presumption would have been that it was regularly returned, and in that case the proper proceeding would have been to correct the minutes, if they did not speak the truth. But, where the minutes are silent as to the fact of return, there is no presumption that the return was regular; and such was the case, as we have discovered, with respect to the special presentment now under adjudication. This presentment was found by a grand jury at the January term, 1883; and, according to the certificate of the clerk giving a copy of the entries, it was not entered as returned until July term, (July 9, 1883.) The clerk also certifies that no order appears directing the entry to be made nunc pro tunc; so that there was no authority whatever for making the entry at the time it was made, to-wit, at the July term, 1883. It follows that the special plea did not contradict the record in any respect, and we think the plea should have been entertained, and the truth of what it alleged inquired into. It has been held in Davis v. State, 74 Ga. 870, and Danforth v. State, 75 Ga. 614, that the sworn bailiff of the grand jury is competent to make return of bills found by the grand jury; but we...