Lundy v. State

• Decision Date: 24 April 1969
• Docket Number: No. 2,No. 44410,44410,2
• Citation: 168 S.E.2d 199,119 Ga.App. 585
• Parties: Albert LUNDY, Jr. v. The STATE
• Court: Georgia Court of Appeals

Page 199

168 S.E.2d 199

119 Ga.App. 585

Albert LUNDY, Jr. v. The STATE.

No. 44410.

Court of Appeals of Georgia, Division No. 2.

April 24, 1969.

Syllabus by the Court

1. The appellant is limited on his appeal to the grounds of objection which he properly presents in the trial court. Accordingly, where a defendant filed a plea in abatement to an indictment on specified grounds and, in the appellate court, abandons them and seeks to raise for the first time new grounds which were not alleged or urged below, nothing is presented for decision.

2. Under the evidence in this case it was not error for the court to charge to the effect that the defendant cannot create an emergency or apparent emergency and them rely thereon to kill in self-defense.

An indictment for murder was returned by a Bibb County grand jury against defendant on April 27, 1967. Prior to arraignment defendant filed a plea in abatement praying that the prosecution against him abate and that the indictment be quashed alleging that the grand jurors who indicted him at the April term had served as grand jurors at the preceding February term, thereby rendering them ineligible under Code § 59-114. The order of court recalling the February term grand jurors for service at the April term reads in part as follows: 'This order entered this date nunc pro tunc for April 20, 1967, to reduce the court's oral order to writing. So ordered this 19th day of May, 1967.' The plea in abatement was overruled, and defendant was tried and convicted of voluntary manslaughter. He appeals from the judgment of conviction and sentence and from the order overruling his motion for new trial.

Adams, O'Neal, Steele, Thornton, Hemingway & McKenney, H. T. O'Neal, Jr., Manley F. Brown, Macon, for appellant.

Jack J. Gautier, Dist. Atty., Macon, for appellee.

EBERHARDT, Judge.

1. Code § 59-114 generally proscribes the practice of secceeding terms of service of grand jurors. However, Section 4 of Ga.L. 1943, pp. 680, 681, provides that a judge of the Superior Court of Bibb County may call back the grand jury which was last drawn and impanelled. Recognizing that the question of the constitutionality of Section 4 of the 1943 Act had not been clearly drawn in issue in the trial court, the grounds of the plea in abatement based upon Code § 59-114 are expressly abandoned in the brief. See Long v. State, 160 Ga. 292, 127 S.E. 842, holding that a similar Act for Walton Superior Court was a general Act and modified § 59-114.

Having abandoned the grounds of the plea in abatement urged below, it is argued in the brief instead that the oral order of the court recalling the February grand jury for service during the April term was insufficient to authorize their service, and that the written nunc pro tunc order filed later did not cure the defective indictment which had been returned. Thus defendant seeks to raise for the first time on appeal new grounds of the plea in abatement which were not alleged or urged below.

Pleas in abatement are dilatory pleas and must be strictly construed, certain in intent and leave nothing to be suggested by intendment. Jones v. State, 219 Ga. 848, 849(2), 136 S.E.2d 358. It is a general principle that a party cannot assert one ground in support of a plea, motion, or objection in the trial court and then expect the appellate court to review an entirely new ground to which he has switched on appeal. The appellant must necessarily be limited on appeal to the grounds which he properly presented in the trial court. See, e.g., Crider v. State, 114 Ga.App. 522, 523(2), 151 S.E.2d 791, where it is held: 'A ground of objection to evidence raised for the first time on review presents nothing for decision. Middleton v. Waters, 205 Ga. 847, 854, 55 S.E.2d 359, and citations. The third enumeration of error complains of the admission of evidence for a reason completely different from the objection made on the trial of the case, and the argument in the defendant's brief as to the admissibility of such evidence, which is limited to the grounds sought to be raised for the first time on review, presents nothing for decision.' Similarly, in Royal Frozen Foods Co. v. Garrett, 119 Ga.App. 424, 427(3), 167 S.E.2d 400, it is held that an objection to the charge of the court must bring into focus the precise nature of the alleged error so that it can be reasonably understood by the trial court. See also G.E.C. Corporation v. Levy, 119 Ga.App. 59(1), 166 S.E.2d 376; Chastain v. State, 113 Ga.App. 601(2), 149 S.E.2d 195; Collier v. State, 223 Ga. 867(1), 159 S.E.2d 73.

Enumerations of error 1 and 2 are without merit.

2. Enumerations of error 3 and 4 complain of the court's charge to the effect that the defendant could not create an emergency...