Terrell v. State

9 Ga. 58

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] We do not find it necessary to express any opinion upon the merits of the objection taken to this proceeding. We are willing to concede,' that it would have been valid if taken at the proper time and in the right way; for no man shall be held to answer for any capital or infamous offence, until he shall have been first charged with the same by a Grand Jury of the County, who have taken the oath prescribed to them by law. But was it good in arrest of judgment ? We think not.

We understand that nothing is good in arrest of judgment, which does not arise from intrinsic causes appearing upon the face of the record. The record of this case commences with the bill, and on the face of the indictment, it is stated that the Grand Juror, Patterson M. Hodge, was sworn. To controvert this recital, and to show that the Juror was not sworn, recourse is had to the minutes of the Court, at the beginning of the term, and to the certificate of the Clerk, neither of which are admissible upon such a motion. The defendant, to take advantage of this irregularity, should have pleaded it specially in bar, upon the arraignment, (Prince, 660,) and before proceeding to trial. I would not say that it would not be ground for a new trial, had the fact come to the knowledge of the defendant too late to make it available in any other way.