Hill v. Nelms
| Decision Date | 24 March 1905 |
| Citation | 122 Ga. 572,50 S.E. 344 |
| Parties | HILL. v. NELMS, Sheriff. |
| Court | Georgia Supreme Court |
CRIMINAL LAW — ARREST OF JUDGMENT—VOID INDICTMENT—FORMER JEOPARDY.
1. The legal effect of a judgment sustaining a motion in arrest of judgment, based upon the ground that the indictment was defective, is that the indictment was void.
[Ed. Note.—For cases in point, see vol. 15, Cent, Dig. Criminal Law, §§ 2480, 2481.]
2. When the accused in a criminal case makes a motion in arrest of judgment upon the ground that the indictment is defective, and this motion is sustained, he will not thereafter be heard to allege that the indictment was in fact good, and that he was in jeopardy thereunder; and this is true without reference to whether the indictment was in fact good or bad in substance.
(Syllabus by the Court.)
Error from City Court of Atlanta; H. M. Reid, Judge.
Application by Ed. Hill for writ of habeas corpus to J. W. Nelms, sheriff. From an order denying the writ, petitioner brings error. Affirmed.
S. C. Crane, for plaintiff In error.
C. D. Hill, Sol. Gen., for defendant in error.
COBB, J. Hill was indicted in the superior court of Fulton county for bigamy. Having been convicted, he made a motion in arrest of judgment upon the ground that the indictment showed upon its face that the offense was barred by the statute of limitations. This motion was sustained, and the judge, at the request of the solicitor general, directed the sheriff to hold the accused in custody until a new indictment could be preferred. The accused then applied to the Judge of the city court of Atlanta for the writ of habeas corpus, which was issued, and at the hearing judgment was entered denying the application and remanding the accused to the custody of the sheriff. The accused excepted.
It does not appear whether it was the purpose of the solicitor general to prefer a new indictment charging the offense at a different date within the statute of limitations, or one charging the offense at the same date, with allegations sufficient to relieve the bar of the statute. No question was made as to the right of the judge to direct the sheriff, by a verbal order, to hold the accused until a new indictment could be preferred. The sole contention of counsel for the plaintiff in error was that the effect of the judgment sustaining the motion in arrest of judgment was to relieve the ac-cused from further prosecution for the same offense under the indictment upon which the judgment was arrested, or upon any other indictment. Judgment will not be arrested in a criminal case merely because the indictment is defective. The defect must be...
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Taylor v. State
...criminal law. Howard v. State, 115 Ga. 244 (4), 253, 41 S. E. 654; Quattlebaum v. State, 119 Ga. 433 (2), 46 S. E. 677; Hill v. Nelms, 122 Ga. 572 (2), 573, 50 S. E. 344; Matthews v. State, 125 Ga. 248, 54 S. E. 192; Price v. State, 137 Ga. 71 (5), 72 S. E. 908; Partee v. State, 19 Ga. App.......
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Taylor v. State
...criminal law. Howard v. State, 115 Ga. 244 (4), 253, 41 S.E. 654; Quattlebaum v. State, 119 Ga. 433 (2), 46 S.E. 677; Hill v. Nelms, 122 Ga. 572 (2), 573, 50 S.E. 344; Matthews v. State, 125 Ga. 248, 54 S.E. Price v. State, 137 Ga. 71 (5), 72 S.E. 908; Partee v. State, 19 Ga.App. 752 (3, 4)......
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State v. Fowler
...invoked and obtained a solemn judgment of the court to that effect, and will not be allowed to impeach it. * * *' Hill v. Nelms, 1905, 122 Ga. 572, 573, 50 S.E. 344, 345. 'But it is urged that the allowance of a motion in arrest of judgment was equivalent to an acquittal by a court or jury,......