Cadle v. State

• Decision Date: 01 February 1960
• Docket Number: No. 2,No. 38111,38111,2
• Citation: 113 S.E.2d 180,101 Ga.App. 175
• Parties: R. R. CADLE v. STATE
• Court: Georgia Court of Appeals

Page 180

113 S.E.2d 180

101 Ga.App. 175

R. R. CADLE v. STATE.

No. 38111.

Court of Appeals of Georgia, Division No. 2.

Feb. 1, 1960.

Syllabus by the Court

1. It is elementary that an indictment must be returned in 'open court'.

2. The laws which give a person a right to be served with a proposed indictment, and to appear before the grand jury, carry the necessary implication that such person has any additional rights as may be necessary to the effective exercise of such granted rights, which would include the right to have counsel by his side each step of the way, if desired.

3. Where, as here, a defendant alleged to be a State official, served with a proposed indictment as is required when a public officer or public official is involved, is indicted under Code § 26-4201 and charged with the offense of 'felony, (Code § 26-4202)', such indictment is not duplicitous.

4. An indictment charging a conspiracy must set forth the exact property of the State at which the conspiracy is aimed. The nature of the agreement of conspiracy and the exact end to be accomplished thereby must be spelled out definitely and specifically in the indictment.

On or about May 20, 1959, a copy of a proposed indictment charging Zack D. Cravey and Ralph R. Cadle with conspiring to cheat and defraud the State, and a notice of intention to lay the same before the Fulton County grand jury, was served upon counsel for the named accused. Service of both the notice and proposed indictment was made pursuant to Code § 89-9908, and Ga.L. 1943, pp. 284-287 (Code (Ann.) § 40-1617. The indictment reads as follows: 'In the superior court of said county: The grand jurors selected, chosen and sworn for the County of Fulton, to wit: [their names listed] in the name and behalf of the citizens of Georgia, charge and accuse Zack D. Cravey and Ralph R. Cadle with the offense of: --Felony (Section 26-4202) for that said accused, in the County of Fulton and State of Georgia, on the 1st day of July, 1958, with force and arms, accused Cravey being then and there Comptroller General of the State of Georgia and exofficio Insurance Commissioner, Georgia Industrial Loan Commissioner, and then and there having control of money of the State of Georgia appropriated and allocated for the operation of all departments and offices under the control and supervision of the Comptroller General, including the payment of salaries and expenses of employees of said State occupying positions in each and all said departments and offices and engaged in transacting the State's business, and accused Cadle being then and there an employee of the State of Georgia holding a position under the control and supervision of accused Cravey, as Comptroller General and ex-officio Georgia Industrial Loan Commissioner as aforesaid, did, with a joint and common intent to cheat, and defraud, and illegally obtain money, and services of employees of said State occupying positions in said departments and offices from the State of Georgia unlawfully, knowingly, wilfully, corruptly and feloniously conspire and agree to cheat, and defraud, the State of Georgia out of, and illegally obtain from said State, money of said State under the control of the accused Cravey, as Comptroller General aforesaid, and services of employees occupying the positions aforesaid intent, did conspire and agree that from and after the date of said conspiracy and until September 10, 1958, accused Cravey, as Comptroller General aforesaid, would not require that employees to be procured by said Cadle as hereinafter set forth, perform the duties of their positions; that said Cadle would procure a number of other employees of the State of Georgia occupying the aforesaid positions, to be determined and selected by said Cadle, and in the name of accused Cravey counsel and command said employees so procured from the date of said conspiracy until the primary election of the Democratic Party of said State on September 10, 1958, to travel over the State of Georgia and during their regular duty hours not perform the duties of their positions but instead engage in political activity in behalf of accused Cravey, then a candidate for nomination for Comptroller General in said primary election, by destroying campaign posters and literature of one of the candidates opposing accused Cravey for said office in said primary election, namely Bruce B. Edwards, by distributing campaign posters, literature and advertising matter promoting said Cravey and by soliciting the votes of the electorate in behalf of said Cravey; that accused Cravey, as Comptroller General, from money of the State of Georgia under the control of accused Cravey would pay to all of said employees so engaging in political activity the regular salaries of their positions during the period of time between the date of said conspiracy and said primary election; and that accused Cadle would counsel and command said employees to claim and said employees would claim, and accused Cravey would approve and pay to said employees from money of the State of Georgia under the control of accused Cravey, travel and subsistence expenses of said employees incurred during said period, while said employees were traveling over the State of Georgia engaging in political activity in behalf of accused Cravey, as aforesaid, and not performing the duties of their positions; contrary to the laws of said State, the good order, peace and dignity thereof.

'Paul Webb, Solicitor General, Special Presentment.'

The trial judge sustained paragraph numbered 9 of the demurrer and struck the following from the indictment: 'and services of employees of said State occupying positions in said departments and offices.' He also sustained paragraph numbered 11 of the demurrer and struck the following from the indictment: 'and services of employees occupying the positions aforesaid.'

On May 28, 1959, in response to the notice, the named accused and their counsel were present at the grand jury room of the Fulton County courthouse, in order to appear before said grand jury in connection with the proposed indictment. When the case was called, the foreman of said grand jury came to the door, and said that the accused could enter, but that he did not recognize the right of counsel to enter, and therefore he would not allow counsel for the accused to enter the grand jury room. The defendant Cadle and the defendant Cravey thereupon entered the grand jury room without their counsel and remained there throughout the presentation of evidence. During the course of said proceeding, each accused made an unsworn statement on his own behalf to the grand jury.

On conclusion of the presentation of evidence, the grand jury voted a true bill of indictment against both of the named accused, charging as set out hereinabove.

Said true bill was delivered by the grand jury foreman to the sworn grand jury bailiff, who took the same to the chambers of the Presiding Judge of the Superior Court of Fulton County. There he was met by a deputy clerk of said court. Said bailiff and deputy clerk then went into the private office of the judge, and delivered the true bill to the judge. After examining the indictment, the judge delivered the bill to the deputy clerk, who carried it to his office, where it was filed, and an entry was made in the minutes purporting to show a regular return of said true bill of indictment.

Subsequently, counsel for the defendant filed a motion to correct the entry in the minutes of said court, on the ground that said entry merely shows that the indictment was returned, which raises the presumption that it was regularly returned, and on the further ground that this entry should show that the indictment was returned to the judge in his private office, in order that he may present evidence in support of his contention that the indictment was not returned in open court.

The defendant also filed a plea in abatement to the indictment on the grounds: (1) that said indictment was not returned into open court as required by law; (2) that he was denied the right to have the advice and assistance of counsel in the hearing before the grand jury; and (3) that the grand jury heard and considered the unsworn statement of a person who was not authorized to be in the grand jury room.

The State filed a traverse to this plea in abatement.

Thereafter, the motion to correct the minutes and plea in abatement came on for hearing before the court, sitting without a jury. After hearing evidence thereon, the court overruled the motion to correct the minutes, and the plea in abatement.

The defendant also filed demurrers to said indictment. Thereafter, said demurrers came on regularly for hearing, and after hearing argument thereon, the court entered an order sustaining certain grounds thereof, and overruling other grounds of said demurrers.

It is to the order overruling the motion to correct the minutes, the plea in abatement, the overruling of certain grounds of the demurrers, and in refusing to quash the indictment, that the case is here for review.

Hoke Smith, Atlanta, Bobby Lee Cook, Summerville, M. K. Pentecost, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., E. L. Tiller, A. Paul Cadenhead, J. Walter LeCraw, Atlanta, for defendant in error.

GARDNER, Presiding Judge.

1. The superior courts of this Court are given general and exclusive jurisdiction in all criminal cases where the offender is subjected to loss of life or confinement in the penitentiary. Const. Art. VI, Sec. IV, Par. I (Code § 2-3901), and see also Code § 24-2615.

Prosecutions in the superior courts are ordinarily instituted by indictments. A prosecution may be brought to a superior court by accusation only in misdemeanor cases and in felony cases other than capital felonies, and then only when the defendant in writing waives indictment by the grand jury. Code § 27-704.

In Zugar v. State, 194 Ga. 285, 286, 21 S.E.2d 647, 648, the Supreme Court sa...