Opinion
41783.
SUBMITTED FEBRUARY 8, 1966.
DECIDED FEBRUARY 24, 1966.
False swearing. Cobb Superior Court. Before Judge Ingram.
Johnson Johnson, Jean E. Johnson, Sr., for appellant.
Luther Hames, Jr., Solicitor General, Ben F. Smith, for appellee.
1. The rights granted under Code § 89-9907, 89-9908 and Code Ann. § 40-1617 may be waived.
2. The evidence authorized the verdict.
SUBMITTED FEBRUARY 8, 1966 — DECIDED FEBRUARY 24, 1966.
The defendant, a justice of the peace, was indicted for false swearing. On the call of the case the defendant waived copy of indictment, list of witnesses, formal arraignment and pleaded not guilty. Thereafter, during the progress of the trial, and before verdict, the defendant made an oral motion to dismiss the indictment because he was not permitted to appear before the grand jury before the indictment was returned. He also made a motion for directed verdict of not guilty which was overruled. The jury returned a verdict of guilty and thereafter the defendant's motion for new trial was overruled and on appeal the defendant enumerates as error the judgment overruling the motion for new trial on the usual general grounds and on the refusal of the solicitor general to permit the defendant to appear before the grand jury prior to the return of the true bill.
1. Under the decision of the Supreme Court in Jones v. Mills, 216 Ga. 616 ( 118 S.E.2d 484), the defendant, a justice of the peace, was in the category of public officers granted the right to appear before a grand jury before an indictment is returned charging them with malfeasance or misfeasance in office. See also Code §§ 89-9907, 89-9908 and Code Ann. § 40-1617. And certainly false swearing in connection with their compensation would fall into such category.
However, in the present case, as in the Jones case, supra, the defendant waived the privilege granted him under such provisions of law and could not thereafter raise such question. The indictment was not otherwise defective so as to support the motion to dismiss in the nature of a general demurrer.
2. There was evidence adduced upon the trial of the case that authorized the verdict of guilty. The indictment charged false swearing in connection with the collection of fees in criminal cases. The solicitor general testified that the defendant brought the document, a list of criminal cases completed during the first three months of 1965 in which the defendant had purportedly issued warrants, that he advised the defendant that such list would have to be sworn to before he could approve it, that Mrs. Frey (employee in the solicitor general's office) was a notary and could swear him, that he pointed to Mrs. Frey, that the defendant went over to her and signed such document in her presence and then handed it back to him. The document was witnessed by Mrs. Frey as a notary public. There was also other evidence that the defendant admitted knowing that, when he swore to such "cost-list," it was untrue. Under the decision of the Supreme Court in McCain v. Bonner, 122 Ga. 842 ( 51 S.E. 36), and of this court in Brooks v. State, 63 Ga. App. 575 ( 11 S.E.2d 688), and Bauknight v. State, 68 Ga. App. 813 ( 24 S.E.2d 217), and similar cases the jury was authorized to find that the defendant intended to be sworn and that the notary public intended to swear him at the time the document was executed.
There was evidence as to the fact that the information contained in the document was false and while a verdict of guilty was not demanded, neither was a verdict of not guilty demanded. The verdict was authorized by the evidence and the trial court did not err in refusing the defendant a new trial.
Judgment affirmed. Hall and Deen, JJ., concur.