¶1We concur in the result, and agree in the main with what has been said in the opinion of the Chief Judge. It is our view, however, that in cases of special presentments, it is not necessary that the grand jury should have before them, at the time the witness is sworn, the physical written presentment. It is sufficient, in our opinion, that there should be a specified charge pending against the person or persons accused and that some definite memorandum of that fact should be before the body, either being entered on the docket kept by them or otherwise. The testimony, upon which the final action of the grand jury, as evidenced by the writing called the presentment, is based, must necessarily be given before that writing can become legally complete; for it is not legally complete until it has been indorsed as a true finding by the grand -jurors, or the foreman. In the absence, of this indorsement, the writing containing tire charge should have no greater efficacy than a memorandum showing that it was the intention of the grand jury to investigate the specified charge against the designated defendant. When an investigation of this kind is *13pending, we think that the witness, sworn definitely and specifically in reference to it, and having taken the prescribed oath, is legally sworn; and if he gives false testimony, he is subject to prosecution for perjury. The words “indictment” and “presentment,” found in the oath, relate to the inchoate charge, not to the completed pleading. We are confirmed in this view by the fact that for many years presentments charging parties with crime were reported to the court in the general presentments of the grand jury, along with other matters of public interest which had no reference whatever to the commission of crime. The pleadings were thereafter perfected by the drafting of the indictments by the prosecuting attorney, even in the absence of the grand jury.
7 Ga. App. 7
Switzer v. State
Decided November 9, 1909
Court of Appeals of Georgia · decided 1909-11-09
<p>1. Tlie grand jury can not find a bill or make a special presentment except upon the testimony of a witness to whom has been administered the oath substantially as prescribed' in section 834 of the Penal Code, in a particular case where the party is charged with a specified offense. In other words, to make the finding legal, the witness must be sworn on a bill or presentment charging a specific offense against the party.</p> <p>2. The solicitor-general is not excused from testifying as to what oath he administered to a witness in a particular case before the grand jury, or from testifying as to whether the witness was sworn before the grand jury in a particular case charging a specified offense against the defendant, on the ground that his testimony is privileged.</p> <p>3. The plea in abatement is good in form and in substance; and if the allegations therein are proved, the special presentment is an unlawful finding of the grand jury, and should bo quashed or dismissed.</p> <p>4.,.j?}i® motion to dismiss the writ of error is without merit.</p>
Good law ✅— No negative treatment on recordhow we know
Decided 1909-11-09
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Cited by 12 later decisions — most recently November 1996
12 state decisions
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