Fortson v. State

79 S.E. 746, 13 Ga. App. 681, 1913 Ga. App. LEXIS 320

Opinion

Pottle, J.

1. A nolle prosequi may, without the consent of the accused, he entered at any time before the ease has been submitted to the jury. Penal Code, § 982. A case is not submitted to a jury, within the meanr ing of this section, until after the jury have been empaneled and sworn in the cause. Newsom v. State, 2 Ga. 60; Franklin v. State, 85 Ga. 570 (11 S. E. 876); Nolan v. State, 55 Ga. 521 (21 Am. R. 281).

2. It appearing, from the allegations of the special plea in bar in the present ease, that although the jury had been stricken and had taken their seats in the jury-box, they had not been sworn, the plea was properly stricken on motion. Whether jeopardy begins immediately after the jury are sworn is not decided. The evidence authorized the verdict, and there was no error in overruling the motion for a new trial, which was based solely upon the ground that the verdict was contrary to the law and the evidence. Judgment affirmed.

Decided October 28, 1913.

Accusation of carrying concealed weapon; from city court of Elberton — Judge Grogan. August' 23, 1913.

P. P. Proffitt, for plaintiff in error. Boozer Payne, solicitor, contra.