White v. State
| Decision Date | 27 January 1894 |
| Parties | WHITE v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. Defects in an indictment afford no ground for a new trial. Exceptions which go merely to the form should be made before trial. For matters affecting the real merits, the remedy after trial, is by motion in arrest of judgment.
2. When it appears upon the face of an indictment that a named grand juror served as "foreman pro tem.," and the finding of "true bill" was signed by him as such, the presumption is that the juror was properly serving as foreman in that case.
3. If the accused, acting bona fide as the agent of another, bought liquor for the latter with the latter's money, and delivered it to the person for whom it was bought, these facts did not constitute a sale of liquor by the accused whether the person from whom he bought was legally authorized to sell or not; but if, in a prima facie case of guilt, he made a statement to the jury, and therein gave an explanation of the transaction which was a mere subterfuge to cover up an unlawful sale of liquor by himself, the jury would be authorized to find him guilty.
4. The indictment having been found on the 18th of October, 1892 the trial having taken place on the 2d of September, 1893, and the evidence showing that the sale of the liquor was made within the two years immediately preceding the trial, but not otherwise indicating the time of the sale, it did not affirmatively appear that the sale was made before the indictment was found, and, consequently, the verdict of guilty was unauthorized.
Error from city court of Floyd; W. T. Turnbull, Judge.
S. White was convicted of selling intoxicating liquors unlawfully, and brings error. Reversed.
Hoskinson & Harris, for plaintiff in error.
W. J. Nunnally, Sol. Gen., and W. J. Neel, for the State.
1. The exceptions to the indictment were not properly taken. They were made in the motion for a new trial, the overruling of which is the error complained of in this court, but do not appear to have been made elsewhere. Exceptions which go merely to the form of an indictment should be made before the trial, (Code, § 4629;) and, even if made and ruled upon then, cannot properly be made the basis of a motion for a new trial, (Flemister v. State, 81 Ga. 768, 7 S.E. 642.) For matters affecting the merits, the remedy after trial is by motion in arrest of judgment, and not a motion for a new trial. This court, it is true, in Wood v. State, 46 Ga. 324, considered and sustained an exception which would have been good in arrest of judgment, though made in that case in the motion for a new trial, but disapproved the practice of including such exceptions as this in motions for new trial, and said: "A motion in arrest of judgment is the proper mode of getting at such a defect as this, since, if the indictment is bad, a new trial cannot be had upon it." "We know of no authority for demanding a verdict on a bad indictment." See, also, Gibson v. State, 79 Ga. 345, (2,) 5 S.E. 76.
2. Clearly, there is no merit in the exception that the name of the legally-elected foreman of the grand jury does not appear upon the bill of indictment, and that, consequently, it does not legally appear that the grand jury passed upon the bill and found it true. In the transcript of the record the indorsement, "True bill," appears on the indictment, and under it the words "Frank W. Quarles Sr., Foreman;" and in the list of grand jurors with which the indictment opens, the same name appears, and is the first on the list, though he is there designated as "Foreman pro Tem." In McGuffie v. State, 17 Ga. 498, (8,) the view is expressed that the signature of the foreman to the return of "True bill" is not essential; but,...
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