Nixon v. State

• Decision Date: 10 November 1904
• Parties: NIXON v. STATE.
• Court: Georgia Supreme Court

48 S.E. 966

121 Ga. 144

NIXON v. STATE.

Supreme Court of Georgia

November 10, 1904

Syllabus by the Court.

1. It is not necessary that an indictment or presentment shall show upon its face the term at which it is found. It is sufficient if this fact appears upon the back of the indictment or presentment where the return of the grand jury is entered.

2. A special presentment, based upon the act approved December 20 1898 (Acts 1898, p. 60), charging one with carrying about his person metal knucks, not in an open manner and fully exposed to view, need not allege that the knucks were "manufactured and sold for the purpose of offense and defense."

3. One cannot invoke an erroneous ruling, and afterwards take advantage of the error thus committed.

4. While the failure to swear a witness before a grand jury might be a sufficient reason for quashing an indictment or presentment founded in part upon the testimony of such witness, if a proper plea in abatement is filed, it is not a sufficient reason for acquitting the accused after issue joined.

5. It is not a good ground of challenge to the array that the panel of jurors embraces one or more disqualified jurors. Objection to such jurors should be raised by a challenge to the poll.

6. The evidence warranted the verdict, and there was no error requiring the granting of a new trial.

Error from Superior Court, Douglas County; A. L. Bartlett, Judge.

Tom Nixon was convicted of carrying concealed weapons, and brings error. Affirmed.

J. S James, for plaintiff in error.

W. K. Fielder, Sol. Gen., for the State.

COBB J.

1. A demurrer was filed setting up that the presentment did not show upon its face at what term it was found. The return of the grand jury entered upon the back of the presentment showed that it was found at the May term, 1903. This was sufficient.

2. Another ground of the demurrer was that the presentment did not allege that the metal knucks were "manufactured for the purpose of offense and defense." This was not necessary. The words quoted appearing in the statute do not qualify any word except "knives."

3. After the jury had been sworn and the trial had begun, it was discovered that one of the jurors selected was a member of the grand jury that returned the presentment. Upon motion of the accused a mistrial was declared, and the jury discharged. When put on trial before another jury the accused entered a plea of former jeopardy, which the court overruled. There was no error in this ruling. The accused was bound by the judgment on his motion for a mistrial, whether the ground of the motion was well taken or not. One cannot invoke an erroneous...