Opinion
23413.
SUBMITTED APRIL 11, 1966.
DECIDED APRIL 12, 1966.
Special plea to indictment for murder, etc. Mitchell Superior Court. Before Judge Crow.
P. Walter Jones, Morris Brown, for appellant.
Fred B. Hand, Jr., Solicitor General, Arthur K. Bolton, Attorney General, Rubye G. Jackson, Assistant Attorney General, for appellee.
Various aspects of this case have been in the State and Federal courts in Whitus v. State, 216 Ga. 284 ( 116 S.E.2d 205); Whitus v. State, 112 Ga. App. 328 ( 145 S.E.2d 83); and Whitus v. Balkcom, 333 F.2d 496. See also Whitus v. State, 222 Ga. 103. The appeal here is to a denial of a special plea in which the accused complains that he has not been (1) arrested under a proper warrant; (2) properly arraigned; (3) brought before a magistrate for commitment; and (4) the true bill of the April term of the 1965 grand jury is void. He specifies as error the above as violations of the Fourth, Fifth, Sixth and Fourteenth Amendments of the Federal Constitution and the laws of the State of Georgia in reference thereto by denying him privileges and immunities, due process and equal protection, and any arraignment, however formal, is therefore absolutely void, and the true bill of the grand jury is void, being so abbreviated in form as to fail to constitute an indictment against him. Held:
1. Neither the brief of counsel nor the enumeration of errors points out any deficiencies in the warrant, and an examination of same fails to disclose any. See Code Ch. 27-1. Further, this accused has been re-indicted since his arrest, incarceration, conviction, and the setting aside of same by the Federal courts in Whitus v. Balkcom, 333 F.2d 496. There is no merit in the complaint as to the warrant.
2. A reading of the indictment shows it contains sufficient language to charge the accused with the crime of murder, the person he killed and how that person was killed by the accused. It satisfies every constitutional requirement and is not subject to the attack made.
3. While the testimony in support of the plea shows without contradiction by the testimony of the accused that he was never carried before a committing magistrate, all questions as to the denial of due process, equal protection and denial of privileges and immunities are no longer of question here since the accused has been re-indicted and formally arraigned after his previous trial, conviction, review, and the setting aside of the conviction by the Federal courts following Whitus v. Balkcom, 333 F.2d 496, in which the State was allowed a period of eight months after the entry of judgment to re-indict and retry the accused. Having seen, heard, and had the opportunity to cross examine witnesses against him during the previous trial, he was given every right guaranteed him by the Constitution; and while no committal hearing was apparently given him, under the evidence shown, as required by Code §§ 27-208 — 27-210, and Ga. L. 1956, p. 796, the re-indictment of the accused after his previous trial, conviction, review, and the setting aside of same, satisfies every constitutional requirement as well as Georgia law. Likewise, the indictment shows he was thereafter formally arraigned, waived copy of the indictment and list of witnesses against him as signed by his attorney, and this is not denied. There is no merit shown in the appeal or specifications of error. This case differs on its facts from Manor v. State, 221 Ga. 866 ( 148 S.E.2d 305).
Judgment affirmed. All the Justices concur.