Opinion
40592.
DECIDED APRIL 7, 1964.
Forfeiture of bond, etc. Terrell Superior Court. Before Judge Geer.
H. A. Wilkinson, Farkas, Landau Davis, Edmund A. Landau, Jr., for plaintiffs in error.
Joe M. Ray, Solicitor General, Jesse G. Bowles, contra.
Where one has been arrested on a warrant, and has executed an appearance bond with a surety thereon, and a "no bill" is returned by the grand jury as to the charge against the accused, the accused is by operation of law discharged upon the return of said first "no bill," and is released from his recognizance along with the surety thereon, subject to being re-arrested and new recognizance required upon the initiation of a new bill of indictment.
DECIDED APRIL 7, 1964.
A warrant was issued for the arrest of George F. Curcio by C. C. Webb, Justice of the Peace, Terrell County, Georgia, based on the affidavit of A. C. Hanner, dated April 19, 1961, charging George F. Curcio with the offense of involuntary manslaughter on April 18, 1961.
On April 19, 1961, Curcio executed an appearance bond with the United Bonding Insurance Company as surety thereon, in the amount of twenty-five hundred dollars ($2,500), the condition of said bond being as follows: "The condition of the above obligation is such that if the above bound George F. Curcio shall personally be and appear at the next term Superior Court to be held in and for the County of Terrell on the 12 day of June `61 next, from day to day, and from term to term, then and there to answer the offense of involuntary manslaughter as charged in the affidavit of ____________ and shall not depart thence without the leave of said court, then the above obligation to be null and void, else to remain in full force and effect."
The above warrant for manslaughter was presented to the Terrell County grand jury at the June term, 1961, but was passed to the December term, 1961. Thereafter, at the December term, 1961, the grand jury declined to indict Curcio and returned a "no bill" as to the said offense of involuntary manslaughter. At the June term, 1962, a "true bill" was returned against Curcio for involuntary manslaughter. At the December term, 1962, the case was called for trial, a jury being available to try said case and the State by and through the solicitor general announced ready, and the defendant after being called, failed to appear. Thereafter, at the same term an order was entered by the court that George Fred Curcio, principal, and United Bonding Insurance Company, security, forfeit their obligation on the aforementioned bond in the sum of twenty-five hundred dollars ($2,500), "unless at the next term of this court they show sufficient cause why this order should not be made final and a scire facias is ordered to issue," and a rule nisi was served on said Curcio and said United Bonding Insurance Company to show cause why a judgment should not be entered against them on the first Monday in June, 1963, being the next term of Superior Court of Terrell County.
Defendants filed their answer, admitting execution of the bond, denying that same had been quoted correctly, alleging that the return of the "no bill" operated as a discharge of the defendant and therefore as a discharge of the surety, and that the indictment on June 4, 1962, returned against the defendant was returned more than six months after the first indictment was quashed on December 4, 1961, and therefore was barred by the statute of limitation, which operated as a discharge of the surety and for other reasons denied any liability, said answer being filed on February 12, 1963. The plaintiff filed demurrers to the answer of the defendants, both general and special on February 15, 1963. To said scire facias, order of the court, and rule nisi, defendants, George F. Curcio and United Bonding Insurance Company, filed their motion to dismiss said rule nisi, proceeding to forfeit bond and scire facias, on May 8, 1963, setting forth that said proceedings filed by the plaintiff failed to set forth any cause of action against either defendant, that a return of a "no bill" on December 4, 1961, operated as a discharge of the defendant, George F. Curcio, and that defendant, United Bonding Insurance Company, as surety, was discharged from all liability on the bond by reason of the discharge of the principal, George F. Curcio.
At the December term, 1963, Carl E. Sanders, Governor, was substituted as party plaintiff for S. Ernest Vandiver, Governor, and after argument, an order, dated December 9, 1963, was entered denying the motion to dismiss filed by the defendants. At the same time, after argument, the court entered an order sustaining plaintiff's demurrers to defendants' answer.
Also, at the December term, 1963, the case was again called for trial, a jury being available to try said case and the State by and through the solicitor general announced ready, and the defendant after being called, failed to appear. Subsequently, on December 9, 1963, the court entered an order making the rule nisi absolute, entering judgment against the defendants for the sum of two thousand five hundred dollars ($2,500) and costs.
The defendants excepted to the final order and judgment of the court making the rule nisi absolute and rendering judgment for the sum of $2,500 and costs in favor of the plaintiff and against the defendants, and to the antecedent orders overruling defendants' motion to dismiss and sustaining the demurrers of the plaintiff to defendants' answer, on the grounds that said rulings and judgments were erroneous, as being contrary to law and to the pleadings and evidence, and without evidence to support them.
The defendants have abandoned their contention that the return of the true bill of indictment on June 4, 1962, was barred by the statute of limitation. Accordingly, the sole question for our determination may, as suggested by counsel for the defendants, be stated as follows: Where one has been arrested on a warrant, and has executed an appearance bond with a surety thereon, and one grand jury has returned a "no bill" as to the charge against the accused, does the return of such "no bill" release the principal (the accused) and also the surety, where the case has been reopened and a true bill has been found against the accused at a subsequent term of the grand jury?
It is our opinion that this question must be answered in the affirmative under the decision of the Supreme Court in Lamp v. Smith, 56 Ga. 589. It was there held that a nolle prosequi of a bill of indictment is a termination of the case pending on that bill, with all recognizance and other incidents of that prosecution; and that the forfeiture of a recognizance against a surety for the appearance of the defendants to answer the old bill of indictment, so nol prossed, is without authority of law as the surety upon the bond growing out of the old indictment was discharged when said indictment was nol prossed.
Unquestionably, a like effect must be given to the return of a "no bill" of indictment as is clearly demonstrated by the decision of this court in Lowry v. Thompson, 53 Ga. App. 71 ( 184 S.E. 891), in which it was stated in headnote 1 that, "After the return of a first `no bill,' the party against whom the indictment is sought is discharged without further answer . . ." and in the opinion as follows:
"Under the common law, `When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill, "ignoramus"; or, we know nothing of it: intimating, that though the facts might possibly be true, that truth did not appear to them; but now, they assert in English more absolutely, "not a true bill"; or (which is the better way) "not found"; and then the party is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury.' 4 Chitty's Blackstone, 305. An Act approved January 29, 1850, which is set out in Cobb's Digest, 863, is entitled `An Act to protect the people of this State from vexatious prosecutions in cases where grand juries may hereafter refuse to find true bills.' The preamble of this Act is as follows: `Whereas, by existing laws, persons charged with crimes or misdemeanors are subject to be indicted on the same charge at different terms of our superior court, notwithstanding a grand jury, on an investigation of the charge or charges, may ignore a bill or bills of indictment and refuse to find a bill predicated upon such charge or charges, which is contrary to justice; and for remedy whereof.' And then follows the Act itself, which is condensed in the Code of 1933, § 27-702, as follows: `Two returns of "no bill" by grand juries, on the same charge or accusation, shall be a bar to any future prosecution for the same offense, either under the same or another name, unless such returns have been procured by the fraudulent conduct of the person charged, on proof of which, or of newly discovered evidence, the judge may allow a third bill to be presented, found, and prosecuted.' It does not seem to me that this Act or Code section has changed the common law with reference to the fact that the defendant is entitled to be discharged without further answer after a return of a (the first) `no bill' ( Gibson v. State, 162 Ga. 504, 506, 134 S.E. 326), but the statute was passed, as it says, `to protect the people of this State from vexatious prosecutions in cases where grand juries may hereafter refuse to find true bills.'"
It is true as contended by the State, that the return of a first "no bill" is no bar to the prosecution of the accused under a "true bill" subsequently returned, since under the provisions of Code § 27-702 the return of two "no bills" by grand juries on the same charge or accusation is necessary to constitute a bar to future prosecution for the same offense; but the accused is by operation of law discharged "without further answer" upon the return of the first "no bill," and is released from his recognizance along with the surety thereon, subject to being rearrested and new recognizance required upon the initiation of a new bill of indictment within the time allowed by law. Unless and until such further action is taken by the State, he walks the streets a completely free man and is entitled to all the privileges of freedom. If he is thus discharged by action of the court, it follows that his surety is discharged.
The trial court erred therefore in sustaining the general demurrer to the defendants' answer, and in entering final judgment in favor of the State.
Judgment reversed. Bell, P. J., and Eberhardt, J., concur.