Sharpe v. Smith

59 Ga. 707

• Court: Supreme Court of Georgia
• Decided: August 15, 1877
• Status: Published

Opinion

Jackson, Judge.

This was an answer to scire facias to forfeit recognizance by the bail. Two points are insisted on as error in the circuit court.

1. First, that three of the grand jury who found the bill were not on the jury list of legal jurors. We think as this defect does not appear on the indictment, it could be taken advantage of only by plea in abatement, and that the defendant was bound to be at court to make it, and the surety obligated himself to have him there to answer, and as the principal was not there, the bond was properly forfeited. On its face, the indictment was good.

2. Another point was made, that the principal in the bond was named differently in the bond from what he was called in the indictment — the given name being Jeff in the indictment, and A. J. in the bond; but in answering the scire facias we think that the surety recognizes the person he was bound for as the defendant who was indicted.. The misnomer, if there was one, was proper matter for plea by the defendant to the indictment, and he had to appear to make it.

Judgment affirmed.