Salter v. State

54 S.E. 685, 125 Ga. 760, 1906 Ga. LEXIS 264

• Court: Supreme Court of Georgia
• Decided: July 2, 1906
• Status: Published

Opinion

Lumpkin, «7.

(After stating the facts.) In answer to a scire facias to forfeit a bail bond in a criminal case, a surety may show that the indictment is void. Liceth v. Cobb, 18 Ga. 314; State v. Lockhart, 24 Ga. 420; State v. Woodley, 25 Ga. 235; McDaniel v. Campbell, 78 Ga. 188; Candler v. Kirksey, 113 Ga. 309. But the forfeiture can not be successfully resisted by an attack on the indictment against the principal, unless it appears that such indictment is void. Williams v. Candler, 119 Ga. 179. In Baker v. State, 97 Ga. 452, it was held, that even where the solicitor-general was himself the prosecutor in a criminal case, and appeared before the grand-jury in both capacities, this was not, after the trial and conviction of the accused, good cause for a new trial, “no exception to the indictment on that ground having been previously taken.” In Statham v. State, 41 Ga. 507, 512, it was held that where the presiding judge appointed as solicitor-general pro tern, a lawyer who practiced in the circuit but resided outside of its limits, such appointment was not invalid. It was said: “At most the non-residence of Mr. Goode [the appointee] in the circuit, is a disqualification, and by section 120 of the Code it is assumed, as a general rule, that the acts of such an officer are good,” at least as a de facto officer. The finding of the indictment was the act of the grand jury; and if the solicitor-general who signed it was related to the defendant, this would not render the indictment void. Nor- was relationship to the accused on the part of the solicitor-general who was in office when the forfeiture nisi was declared and a judgment nisi entered by the court and scire facias issued by the clerk sufficient to render the whole proceeding void. This being true, the presiding judge properly held that the answer set up no sufficient defense and entered final judgment on the bond.

It has been held that a new' trial will not be granted in a criminal case because of the relationship wdthin the prohibited degrees of a juror to the accused, although such relationship was unknown to the accused and his counsel until after verdict. Downing v. State, 114 Ga. 30. There w'ould seem to be at least as strong reason for holding that relationship on the part of the solicitor-general to the accused would not render an indictment signed by him void. Another ground was set up in the answer as to the disqualification of the judge in whose name the scire facias issued, but this was shown to be a mere clerical mistake, and was duly corrected.

Judgment affirmed.

All the Justices concur, except Evans, J., disqualified, and Fish, G. J., absent.