Sampson v. State
| Decision Date | 15 February 1906 |
| Citation | 53 S.E. 332,124 Ga. 776 |
| Parties | SAMPSON v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
An indictment must be returned into open court. Accordingly when the judge of a superior court, at 10 o'clock a. m of a given day, ordered that a recess of the session of the court for that day be taken from that hour until 8:30 o'clock the next morning, and then left the courtroom and did not return during the remainder of that day, an indictment returned during the afternoon of the same day by the bailiff of the grand jury to the clerk of the court while he was in the courtroom, was not properly returned, and a plea in abatement setting up such facts, and supported by uncontroverted evidence, should have been sustained.
Error from Superior Court, Thomas County; R. G. Mitchell, Judge.
Mitch Sampson was convicted of crime, and brings error. Reversed.
Theo. Titus, for plaintiff in error.
W. E Thomas, Sol. Gen., for the State.
At the October Term, 1905, of the superior court of Thomas county, the judge, about 10 o'clock a. m. on October 17th, having disposed of the civil cases set for that day, ordered a recess of the court until 8:30 o'clock the next morning, excusing the petit jurors until that time, but not so relieving the grand jury and the clerk of the court from duty. The judge then left the courthouse and did not return until the next morning. During the afternoon of October 17th the bailiff of the grand jury delivered to the clerk of the court, who was in the courtroom, an indictment against Mich. Sampson, which was marked ""True bill" and signed by the foreman of the grand jury. Upon the call of the case for trial at that term of the court, the accused filed a plea in abatement, to the effect that no indictment had been returned against him in open court, either by the grand jury or by the bailiff thereof. The state traversed this plea, and upon the trial of the issue thus made, before a jury, the accused submitted evidence establishing the facts as above stated. The court directed a verdict against the plea. The case was then tried upon its merits and the accused found guilty. He moved for a new trial, which motion was overruled by the court, and he excepted.
In 10 Encyclopedia of Pleading and Practice it is said: "An indictment must be returned into open court by the grand jury and in the presence of its members." The decisions of many courts are cited which sustain the text. Such was the procedure at common law, which is described by Chitty as follows: Chitty's Criminal Law, * 324, *325. The practice of grand juries returning indictments into open court prevailed in this state until a comparatively recent period. In Danforth v. State, 75 Ga. 614, 58 Am.Rep. 480, Mr. Justice Hall, in delivering the opinion, said: "Within the memory of many of us, bills and presentments were returned into court by the entire body, whose names were called by the clerk, and in that way it was ascertained that a legal quorum was present, and after consenting that the state's counsel might alter any matter of form, but not any matter of substance without their privity and consent, they made their report to the court, which was directed to be entered on the minutes." He further said that prior to the act of December 21, 1857, all witnesses to be examined before the grand jury, accompanied by some members of that body, were sworn in open court in each particular case in which they were summoned to testify, but that under that act, it was made lawful for the foreman of each grand jury to administer the oath prescribed by law to witnesses that might be required to testify before that body. The motive that led to this change, the learned justice said, was to prevent interruptions to the business of the court and the timely warning that was given to offenders of what was transpiring before the grand jury. He further said: ...
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