Summary
In Bryant v. State, 224 Ga. 235 (161 S.E.2d 312), the court said, "Though the defendant designated these motions as motions to "quash" the indictment, we treat them as being pleas in abatement or a special plea in bar.' `It is an elementary rule of pleading that substance, not mere nomenclature, controls.' McDonald v. State, 222 Ga. 596, 597 (1) (151 S.E.2d 121) and cits."
Summary of this case from Middlebrooks v. StateOpinion
24553.
SUBMITTED MARCH 12, 1968.
DECIDED APRIL 8, 1968.
Murder. Berrien Superior Court. Before Judge Lott.
Elsie H. Griner, for appellant.
Vickers Neugent, Solicitor General, Arthur K. Bolton, Attorney General, Marion O. Gordon, Assistant Attorney General, Joel C. Williams, Jr., Deputy Assistant Attorney General, for appellee.
On the trial of Jimmy Lee Bryant, charged by indictment with the offense of murder, in which he was represented by legal counsel, the jury returned a verdict of guilty with a recommendation of mercy, and he was sentenced to imprisonment for life. His motion for a new trial on the general grounds was overruled, and notice of appeal was filed from the conviction and sentence.
There are only two enumerations of error, viz., (1) the court erred in denying defendant's motion to "quash" the indictment upon the ground the defendant was arrested without a warrant and (2) the court erred in denying the defendant's motion to "quash" the indictment upon the ground that he was never given a committal hearing. Held:
The record discloses that both motions were made at the close of the introduction of evidence.
Though the defendant designated these motions as motions to "quash" the indictment, we treat them as being pleas in abatement or a special plea in bar. Regardless of how these motions are designated, such motions must be made in writing upon the defendant's being arraigned. Code § 27-1501. Where such motions are not made at the proper time, they are deemed to have been waived. Bradford v. Mills, 208 Ga. 198 (2) ( 66 S.E.2d 58); Thomas v. State, 71 Ga. 44; Hill v. State, 41 Ga. 484 (2). In the instant case these motions were not made until the evidence was closed.
No error is enumerated on the order denying a new trial.
Judgment affirmed. All the Justices concur.