Tucker v. State

Decision Date13 August 1910
Citation135 Ga. 79,68 S.E. 786
PartiesTUCKER v. STATE.
CourtGeorgia Supreme Court

(Syllabus by the Court.)

1. Grand Jury (§ 19*)—Objections — Time for Making.

After the passage of an act of the Legislature changing the time for holding the superior court in a certain county, court was held at the time formerly fixed therefor. Grand jurors were drawn to serve at the next regular term, and at such succeeding term a grand jury was impaneled, which was composed of a number of grand jurors thus drawn and talesmen summoned to complete a panel. Held, that a person accused of murder, and who was in jail awaiting indictment, but made no objection to the grand jury until after they had found an indictment against him and he had been put upon trial thereunder, could not have the indictment quashed by a plea in abatement because of the illegality of the time when the term of court was held at which the grand jurors were drawn; and this is true, although the plea in abatement was interposed before pleading to the merits, and the attorney for the accused stated that he had not been employed until after the indictment had been found, and that he and his client did not know of the irregularity until after it had been so found. Turner v. State, 78 Ga. 174; Lascelles v. State, 90 Ga. 347, 372, 16 S. E. 945, 35 Am. St. Rep. 216; Folds v. State, 123 Ga. 167, 51 S. E. 305; Parris v. State, 125 Ga. 777, 54 S. E. 751.

[Ed. Note.—For other cases, see Grand Jury, Cent. Dig. §§ 53-55; Dec. Dig. § 19.*]

2. Case Distinguished.

In Finnegan v. State, 57 Ga. 427, no question seems to have been made as to the time when the objection should have been raised. The decision was also rendered by two judges, with a strong dissenting opinion by the Chief Justice. If the opinion of the majority of the court in that case should be followed, rather than the dissenting opinion, so far as the ruling went, it does not control this case. Moreover, the reasoning of the dissenting opinion has been followed in later cases. Williams v. State, 69 Ga. 11 (5c), 27; Lee v. State, 69 Ga. 705; Roby v. State, 74 Ga. 812(a).

3. Review on Appeal.

The evidence was sufficient to support the verdict, and there was no error in overruling the motion for a new trial.

Error from Superior Court, Liberty County; P. E. Seabrook, Judge.

Frank Tucker was convicted of crime, and he brings error. Affirmed.

H. H. Elders, for plaintiff in error.

N. J. Norman, Sol. Gen., and Jno. C. Hart, Atty. Gen., for the State.

LUMPKIN, J....

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7 cases
  • Tennon v. Ricketts, 77-2356
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 13 June 1978
    ...attorney before indictment); Lumpkin v. State, 152 Ga. 229, 109 S.E. 664 (1921) (defendant jailed before indictment); Tucker v. State, 135 Ga. 79, 68 S.E. 786 (1910) (defendant jailed before In Folds v. State, 123 Ga. 167, 51 S.E. 305 (1905), it is not clear from the opinion whether the def......
  • Blevins v. State
    • United States
    • Georgia Supreme Court
    • 23 February 1965
    ...the grand jury. His failure to make a timely objection to the grand jury amounted in law to a waiver of his right to do so. Tucker v. State, 135 Ga. 79, 68 S.E. 786; Burns v. State, 191 Ga. 60(3), 64, 11 S.E.2d 350; Heard v. State, 210 Ga. 523(1), 81 S.E.2d 467; Cobb v. State, 218 Ga. 10(2 ......
  • Lumpkin v. State
    • United States
    • Georgia Supreme Court
    • 16 November 1921
    ... ... is found, where the illegality was known or, if not known by ... the defendant or his attorney at law before indictment, by ... plea in abatement to the indictment. Turner v ... State, 78 Ga. 174; Folds v. State, 123 Ga. 167, ... 51 S.E. 305; Tucker v. State, 135 Ga. 79, 68 S.E ... 786. Where there is no such challenge or plea in abatement, ... such questions cannot be raised for the first time after ... verdict, by motion for a new trial. Jordan v. State, ... 119 Ga. 443, 46 S.E. 679 ...          The ... objection that ... ...
  • Evans v. State
    • United States
    • Georgia Court of Appeals
    • 18 September 1915
    ...Lascelles v. State, 90 Ga. 347(3), 372, 16 S. E. 945, 35 Am. St Rep. 216; Parris v. State, 125 Ga. 777(4), 54 S. E. 751; Tucker v. State, 135 Ga. 79, 68 S. E. 786; Brooks v. State, 12 Ga. App. 105, 76 S. E. 765. When, however, the grand jurors in this case, on being informed that more than ......
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