Switzer v. State
| Decision Date | 09 November 1909 |
| Docket Number | (No. 2,072.) |
| Citation | 7 Ga.App. 7,65 S.E. 1079 |
| Court | Georgia Court of Appeals |
| Parties | SWITZER . v. STATE. |
The grand jury cannot find a bill or make a special presentment, except upon the testimony of a witness to whom has been administered the oath substantially as prescribed in section 834 of the Penal Code of 1895, in a particular case where the party is charged with a specified offense. In other words, to make the finding legal, the witness must be sworn on a bill or presentment charging a specific offense against the party.
[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. § 76; Dec. Dig. § 36.*]
The Solicitor General is not excused from testifying as to what oath he administered to a witness in a particular case before the grand jury, nor from testifying as to whether the witness was sworn before the grand jury in a particular case charging a specified offense against the defendant, on the ground that his testimony is privileged.
[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 86, 87; Dec. Dig. § 41.*]
The plea in abatement is good in form and substance, and if the allegations therein are proved the special presentment is an unlawful finding of the grand jury, and should be quashed or dismissed.
[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 280.*]
The motion to dismiss the writ of error is without merit.
[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 1103.*]
(Syllabus by the Court.)
Error from City Court of Covington; W. H. Whaley, Judge.
Ed Switzer was convicted of gaming, and brings error. Reversed.
The plaintiff in error was arraigned in the city court of Covington on a special presentment of the grand jury of Newton county, charging him with the offense of gaming. Before pleading, he made a written demand for a copy of the presentment, and for list of the witnesses sworn before the grand jury on whose testimony the special presentment was found, and a copy of the special presentment, with the name of one witness thereon, was furnished to him. He thereupon filed a plea in abatement, on the ground that this witness, the sole witness sworn before the grand jury, and upon whose testimony the presentment was returned against him, was not lawfully sworn as a witness; that the oath prescribed by law to be administered to witnesses before the grand jury was not administered; that, instead of the lawful oath being administered to the witness on this special presentment charging the defendant with the offense of gaming, the witness was sworn to give evidence generally against various persons for gam ing, and, after being so unlawfully sworn, gave testimony, not only against this defendant, but against a great many other persons at the same time for the offense of gaming, and on this general testimony this presentment was returned; that there was no indictment or presentment before the grand jury charging him with a specified offense upon which this witness was sworn and delivered her testimony. The state demurred to this plea, and moved that the court strike that part of it which alleged that there was no indictment or presentment before the grand jury against the defendant when the witness delivered her testimony, and that the witness was not sworn to give evidence in this special case against the defendant. The court sustained this part of the demurrer, and struck from the plea the above-stated allegation, holding that the oath of the witness was valid and the testimony legal evidence, although there was no indictment or presentment drawn and pending against the defendant in correct or legal form when the witness testified before the grand jury. The defendant excepted to this ruling. The state filed a general denial of the allegations of the plea, and the issue thus formed was submitted to the jury. At the conclusion of the evidence the court directed a verdict against the plea; and this, also, was excepted to.
In support of the allegations contained in the plea in abatement the defendant introduced the Solicitor General, who testified that the witness whose name was on the back of the special presentment was the only witness that appeared and testified before the grand jury in the case, and that on her testimony alone the special presentment was found. Counsel for the defendant propounded to the Solicitor General the following questions: "Was any oath administered to Carrie Cooper in this case against Ed Switzer when she testified before the grand Jury?" "Was his name mentioned in any oath administered to her before the grand jury?" "Was this special presentment founded upon the testimony of Carrie Cooper under any oath administered to her in this particular case before the grand jury?" The witness refused to answer these questions, on the ground that the information desired was "privileged and confidential, and that he would go to jail before he would tell what oath was administered to her." The defendant's counsel stated to the court that he expected to prove by this witness that no oath was administered to the witness Carrie Cooper in the case against the defendant, Switzer, when she testified before the grand jury, that his name was not mentioned as the defendant against whom she was to testify under any oath which was administered to her before the grand jury, and that there was no special presentment or indictment against the defendant upon which she was sworn. The court refused to compel the witness to answer the questions, and this refusal was excepted to. When the case was called in this court a motion was made to dismiss the writ of error, because the brief of evidence attached to the bill of exceptions was not approved or identified by the court, nor agreed to by counsel for the parties. A brief of so much of the oral and documentary evidence as is material, and a brief of the pleadings in the case, are incorporated and made a part of the bill of exceptions, and are verified by the certificate of the judge.
P. C. Foster, and Middlebrook, Rogers & Knox, for plaintiff in error.
R. W. Milner, Sol., for the State.
HILL, C. J. (after stating the facts as above). 1. In all cases of presentment or of indictment, the only oath which can be administered to a witness before the grand jury is as follows: Pen. Code, 1895, § 834. If the oath of the witnesses sworn before the grand jury be materially different from the above oath prescribed by the statute, the indictment or presentment should be quashed or dismissed. Ashburn v. State, 15 Ga. 246. The grand jury cannot find a bill or make a presentment, "except upon the testimony of witnesses sworn in a particular case, where the party is charged with a specified offense." In re Lester, Mayor, 77 Ga. 143. Unless the oath prescribed by the statute is taken by the witness, his testimony before the grand jury does not amount to evidence, and, if false, would not be...
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State v. Bartel
...which involved the oath of a witness before the grand jury in a criminal case, and Williams in turn relied upon Switzer v. State, 7 Ga.App. 7, 65 S.E. 1079 (1909), which also involved the oath administered to a witness before the grand jury in a criminal case. We have not discovered any cas......
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Evans v. State
...of witnesses sworn in a particular case, where the party is charged with a specified offense" (In re Lester, 77 Ga. 143; Switzer v. State, 7 Ga. App. 7, 65 S. E. 1079); and the investigation cannot relate back to statements which may have been heard previously by members of the grand jury i......
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