Futrell v. State

• Citation: 122 S.E. 80,31 Ga.App. 767
• Decision Date: 06 March 1924
• Docket Number: 15190.
• Parties: FUTRELL v. STATE.
• Court: Georgia Court of Appeals

122 S.E. 80

31 Ga.App. 767

FUTRELL v. STATE.

No. 15190.

Court of Appeals of Georgia, First Division

March 6, 1924

Syllabus by the Court.

An indictment drawn under section 204 of the Penal Code of 1910 which charges a certain director of a certain chartered bank incorporated under the laws of the state, with causing or allowing the bank to become fraudulently insolvent during his sole official charge and responsibility as director thereof is not subject to a demurrer which sets up that there is a nonjoinder of parties in the indictment because "the statute specifically [states] that the president and directors shall be punished, and the president and other directors are not joined in said indictment, nor their names given, nor is any reason stated for the nonjoinder."

(a) Nor was the indictment in the instant case subject to any other ground of the demurrer insisted upon by the plaintiff in error (the ground that the statute upon which the indictment was based is unconstitutional is expressly abandoned in the brief of counsel for the plaintiff in error).

It is recited in the bill of exceptions that the defendant, before the indictment was returned, presented his challenge to the array of the grand jurors, and that the court refused to pass upon it and directed that it be filed in court. Subsequently a plea in abatement was filed, setting up, first, that all the jurors who returned the indictment were incompetent, for certain stated reasons; and, second, that certain named jurors were incompetent for other stated reasons. The allegations in the plea were denied by the solicitor general and the issues thus raised were submitted to the court without the intervention of a jury. After hearing evidence thereon the court found against the plea; and the court overruled the motion for a new trial on the finding and judgment against the plea. The defendant excepted to the finding and judgment on the plea, but did not except to the refusal of the court to pass upon his challenge to the array. Held: It appearing from the facts stated in the plea in abatement that all of the objections (now insisted upon) to the grand jurors were propter affectum, and that the objections were known to the defendant prior to the return of the indictment, the objections could not be the basis of a plea in abatement, but could only be presented as a challenge before the indictment was returned. Nichols v. State, 17 Ga.App. 593, 87 S.E. 817, and citations. And the fact that they were so presented in the instant case, and that the court refused to pass upon them, does not permit them to be subsequently considered as grounds of a plea in abatement. There can be no plea in abatement in a criminal case until after the return of an indictment, and obviously the plea cannot be based upon grounds which must be presented before the indictment is returned. The court, therefore, did not err in finding against the plea. It is immaterial that the judge found against it on its merits. The same result was reached. The refusal of the court to pass upon the objections to the jurors when properly presented prior to the finding of the indictment is not excepted to, and therefore cannot be considered by this court.

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