Hayes v. State, 52202

• Decision Date: 17 May 1976
• Docket Number: No. 2,No. 52202,52202,2
• Citation: 138 Ga.App. 666,226 S.E.2d 819
• Parties: Clayton HAYES v. The STATE
• Court: Georgia Court of Appeals

Page 819

226 S.E.2d 819

138 Ga.App. 666

Clayton HAYES v. The STATE.

No. 52202.

Court of Appeals of Georgia, Division No. 2.

May 17, 1976.

Auman & Campbell, John C. Campbell, Trenton, William Ralph Hill, Jr., LaFayette, for appellant.

Earl B. Self, Dist. Atty., Jon B. Wood, Asst. Dist. Atty., Summerville, for appellee.

PANNELL, Presiding Judge.

The defendant was indicted for robbery, burglary and two counts of kidnapping. He was convicted of one count of kidnapping, robbery and burglary. He appeals the judgment of conviction and sentence.

The evidence shows that in the early morning hours of April 6, 1974, Dr. and Mrs. Stephenson were awakened in their home by two masked men. The men asked for money and told Dr. Stephenson to show them his safe. The two men struck both victims in the ribs and threatened to kill them if they did not show them the safe. Dr. Stephenson informed the men that he had no safe at his home but that he did have one at his office.

The two masked men took Dr. and Mrs. Stephenson from their home to the office. Mrs. Stephenson was forced into the rear seat of the car and told not to scream or her throat would be cut. Upon arriving at the office, Dr. Stephenson opened his safe. One of the men took some money and drugs from the safe. Immediately thereafter, a police officer arrived at the office and apprehended the defendant.

1. Appellant's enumeration of error number 1 is abandoned.

2. Appellant urges error in the court's overruling his special plea in abatement and motion to quash the indictment. Appellant argues that the indictment should have been quashed because the foreman of the grand jury was the county coroner, an elected official. All elected officers and officials are incompetent to serve as grand jurors during their terms of office. See Code § 59-201.

Appellant's special plea in abatement and motion to quash were filed prior to arraignment and argued on arraignment day; they were filed after the return of the indictment. 'Where a defendant is represented by counsel at the commitment hearing and where no challenge to the array of grand jurors is made until after the indictment, any contention that the grand jury is not properly constituted will be treated as having been waived.' Scott v. State, 121 Ga.App. 458, 459, 174 S.E.2d 243, 245. "Points relating to the number of grand jurors drawn and their competency should be made before the true bill is found, and not on the trial before the traverse jury, especially where the defendant is under a chrge that apprises him that the case will go before the grand jury, by being under bond to appear or confined in jail to answer the offense at court'.' Simpson v. State, 100 Ga.App. 726, 112 S.E.2d 314.

The evidence at the...