Folds v. State
| Decision Date | 13 June 1905 |
| Citation | 51 S.E. 305,123 Ga. 167 |
| Parties | FOLDS. v. STATE. |
| Court | Georgia Supreme Court |
No abuse of discretion is shown in the refusal by the court to postpone the hearing of a certiorari case because of lack of opportunity to file a traverse to the answer of the county judge, when it does not appear from the record that the plaintiff in error did not have such opportunity.
Previous residence in the county for six months before service is a necessary qualification of a grand juror. Disqualification on this ground is propter defectum, and, when urged by plea in abatement, before the indictment should be quashed it must affirmatively appear that the accused did not have notice and opportunity to make the question by challenge before the finding of the indictment.
The evidence admitted was not objectionable for the reason assigned.
"Indecently acting, " as used in Pen. Code 1895, § 418, must be taken in its comprehensive sense, and embraces all improper conduct which interrupts and disturbs a congregation of persons lawfully assembled for divine worship.
[Ed. Note.—For cases in point, see vol. 17, Cent. Dig. Disturbance of Public Assemblage, § 4.]
Where a congregation assembled for divine worship after the morning service had adjourned for dinner to be served on the church grounds, with the intention of returning after the meal to the churchhouse for an afternoon service, in contemplation of the statute the congregation had not dispersed while partaking oftheir dinner, but were still assembled for the purpose of divine worship.
(Syllabus by the Court.)
Error from Superior Court, Putnam County; H. G. Lewis, Judge.
Charlie Folds was convicted of interrupting public worship. A writ of certiorari was overruled, and he brings error. Affirmed.
The defendant was tried and convicted in the county court of Putnam county for the offense of interrupting and disturbing a congregation of persons lawfully assembled for divine service. He sued out a writ of certiorari, which was overruled, and the bill of exceptions is to the refusal of the court to sustain the certiorari and order a new trial.
W. T. Davidson, for plaintiff in error.
J. E. Pottle, Sol. Gen., and S. T. Wingfield, for defendant in error.
EVANS, J. (after stating the facts). 1. It appears from the petition for certiorari and the answer of the judge that upon the call of the case in the county court the defendant, through his counsel, asked a postponement of the hearing until he had an opportunity to prepare and file a traverse to the answer of the judge. It does not appear other than that all of the proceedings were had at the return term of the writ when the answer of the judge was filed. The defendant in certiorari may at the first term, and before the hearing, traverse the truth of the answer or return, which traverse shall be in writing. Pen. Code 1895, § 767; Civ. Code 1895, § 4651. Should it appear that the answer was filed at such a time as not to give the plaintiff in certiorari an opportunity to prepare and file a traverse, the court should allow time sufficient to prepare the traverse; but, as the record does not disclose that the plaintiff in certiorari did not have ample time to prepare and file his traverse to the answer of the county judge, it cannot be said that the court abused its discretion in refusing to allow additional time within which to prepare and file the traverse.
2. One of the errors alleged in the petition for certiorari was the overruling of the plea in abatement filed by the defendant. It was alleged in the plea that one of the grand jurors who served upon the jury that returned the bill had not resided within the county for a period of six months. The evidence submitted established the truth of this allegation, but there was no evidence submitted to the court to show that the accused did not have full notice of the fact and an opportunity to make the question by challenge before the finding of the indictment. A necessary qualification of a grand juror is residence in the county for six months preceding the time of serving. Pen. Code 1895, § 811. The disqualification of a grand juror who has not resided in the county the requisite time before service is propter defectum, and must be made by the accused before the finding of the indictment, unless it appears that he did not have full notice and opportunity to make the challenge. Edwards v. State, 121 Ga. 590, 49 S. E. 674. The evidence offered by the accused, failed to show that he did not have notice that it was probable that an indictment would be preferred against him, so as to give him an opportunity to challenge the competency of the juror. There was therefore no error in overruling the plea in abatement upon the evidence submitted.
3. The plaintiff in error complains that the court erred in allowing a witness to testify that while the defendant was in his custody, under arrest, he stated that the pistol dropped out of his pocket, and was accidentally discharged, with no intent on the part of the defendant to shoot it. The objection was that this...
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Tennon v. Ricketts, 77-2356
...jailed before indictment); Tucker v. State, 135 Ga. 79, 68 S.E. 786 (1910) (defendant jailed before indictment). In Folds v. State, 123 Ga. 167, 51 S.E. 305 (1905), it is not clear from the opinion whether the defendant had been arrested prior to indictment, but the court speaks of the nece......
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... ... intention of changing his residence, he did not lose his ... citizenship and was a competent juror. Besides, the objection ... to the grand juror comes too late. The nonresidence of a ... grand juror is ground for challenge propter defectum, and ... cannot be made after verdict. Folds v. State, 123 ... Ga. 167, 51 S.E. 305; Wall v. State, 126 Ga. 549, 55 ... S.E. 484 ... 2. On ... the threshhold of the trial, and before the state had ... submitted any evidence, defendant's counsel proposed to ... the court that the defendant would admit that he killed ... ...
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Bush& v. State
...in abatement conforms to the requirements laid down in McRae v. State, 71 Ga. 99, Mize v. State, 135 Ga. 295, 69 S. E. 173, Folds v. State, 123 Ga. 167, 51 S. E. 305, and Wall v. State, 126 Ga. 549, 55 S. E. 484, in that it was filed at the proper time; for, this being an accusation, of cou......
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Parris v. State
...of the indictment, unless it appears that he did not have full notice or opportunity to make the challenge at that time. Folds v. State, 51 S. E. 305, 123 Ga. 167, (2). [Ed. Note.—For cases in point, see vol. 24, Cent. Dig. Grand Jury, § 51.] 4. Same. When the accused seeks, after the findi......