When pleas available generally.

- Prisoner, upon being arraigned, may demur to the indictment, plead to the jurisdiction of the court, or file a plea in abatement or in bar, but if such pleas are not made preliminary to the trial, the pleas are held to be waived in contemplation of law. Jones v. Mills, 216 Ga. 616, 118 S.E.2d 484 (1961).

Oral renewed motion for discharge and acquittal proper.

- Motion for discharge and acquittal based on the constitutional speedy trial right, which was orally renewed by the defendant at the time of trial, was proper as such a motion did not have to be in writing pursuant to O.C.G.A. § 17-7-111. State v. Reid, 298 Ga. App. 235, 679 S.E.2d 802 (2009).

Motions must be timely and in writing.

- If a demurrer or plea in abatement or bar is not made in writing previous to the trial, the making thereof will be held to have been waived. Hill v. State, 41 Ga. 484 (1871); Hall v. State, 103 Ga. 403, 29 S.E. 915 (1898); Gilmore v. State, 118 Ga. 299, 45 S.E. 226 (1903); Wilkerson v. State, 14 Ga. App. 475, 81 S.E. 395 (1914); Reddick v. State, 24 Ga. App. 776, 102 S.E. 132 (1920).

Requirements of this section were imperative, and a demurrer not shown to have been in writing will be overruled. Wimbish v. State, 70 Ga. 718 (1883); McGarr v. State, 75 Ga. 155 (1885); Lampkin v. State, 87 Ga. 516, 13 S.E. 523 (1891); Sims v. State, 110 Ga. 290, 34 S.E. 1020 (1900).

Regardless of how the motions are designated, such motions must be made in writing upon the defendant's being arraigned and when such motions are not made at the proper time, the motions are deemed to have been waived. Bryant v. State, 224 Ga. 235, 161 S.E.2d 312 (1968).

When the defendant's motions to quash the indictment because of prejudicial delay were not made in writing upon the defendant's being arraigned, the motions were deemed to have been waived. Hardwick v. State, 158 Ga. App. 154, 279 S.E.2d 253 (1981).

As must all exceptions to form and procedural matters.

- All exceptions to form or matters relating to procedure in returning an indictment under the provisions of this section that may arise by special demurrer or by plea in abatement or plea in bar must be made in writing preliminary to trial and if not made at the proper time are considered waived. Peppers v. Balkcom, 218 Ga. 749, 130 S.E.2d 709 (1963).

Special demurrers not made at or before arraignment are waived. Carter v. State, 155 Ga. App. 49, 270 S.E.2d 233 (1980).

Demurrer must not only be filed but brought to court's attention.

- Though a demurrer is properly filed before arraignment, yet if the demurrant proceeds to trial without having brought it to the attention of the court it is too late to do so after a juror has been sworn. Gilmore v. State, 118 Ga. 299, 45 S.E. 226 (1903); Chambers v. State, 22 Ga. App. 748, 97 S.E. 256 (1918).

Demurrers, pleas, and answers must be disposed of in that order; it is error to proceed with the trial when demurrers or pleas remain for consideration. Birt v. State, 127 Ga. App. 532, 194 S.E.2d 335 (1972).

Effect of sustaining special demurrer.

- Sustaining of a special demurrer, the result of which is either to strike from or add to the material allegations of an indictment, is equivalent to sustaining a general demurrer and quashing the indictment. Gentry v. State, 63 Ga. App. 275, 11 S.E.2d 39 (1940).

Validity of arraignment held before pleas ruled on.

- When the arraignment takes place, subject to hearing any pleas that may be filed prior to the trial of the case, the failure to hear such pleas prior to the entering of a not guilty plea does not vitiate such arraignment, since such a procedure does not cause a defendant to be tried without arraignment nor does it preclude the defendant from filing any defensive pleading and obtaining a ruling thereon prior to trial. Brown v. State, 235 Ga. 353, 219 S.E.2d 419 (1975).

Cited in Higgins v. State, 92 Ga. App. 739, 90 S.E.2d 40 (1955); Lyons v. State, 94 Ga. App. 570, 95 S.E.2d 478 (1956); Brown v. State, 223 Ga. 76, 153 S.E.2d 709 (1967); Smith v. State, 224 Ga. 750, 164 S.E.2d 784 (1968); McBride v. State, 119 Ga. App. 418, 167 S.E.2d 374 (1969); Spell v. State, 120 Ga. App. 398, 170 S.E.2d 701 (1969); Jones v. State, 226 Ga. 747, 177 S.E.2d 231 (1970); United States ex rel. Huguley v. Martin, 325 F. Supp. 489 (N.D. Ga. 1971); Robertson v. State, 127 Ga. App. 6, 192 S.E.2d 502 (1972); Chenault v. State, 234 Ga. 216, 215 S.E.2d 223 (1975); Bramblett v. State, 139 Ga. App. 745, 229 S.E.2d 484 (1976); Hampton v. State, 141 Ga. App. 866, 234 S.E.2d 698 (1977); Cronch v. State, 141 Ga. App. 851, 235 S.E.2d 40 (1977); State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Parrish v. State, 160 Ga. App. 601, 287 S.E.2d 603 (1981); Miller v. State, 182 Ga. App. 700, 356 S.E.2d 900 (1987); Hope v. State, 193 Ga. App. 202, 387 S.E.2d 414 (1989); Dunbar v. State, 209 Ga. App. 97, 432 S.E.2d 829 (1993); Hall v. State, 213 Ga. App. 242, 445 S.E.2d 578 (1994); Thompson v. State, 234 Ga. App. 74, 506 S.E.2d 201 (1998); Pearson v. State, 258 Ga. App. 651, 574 S.E.2d 820 (2002).

Waiver of plea of former plea jeopardy

- If not made in writing at the proper time, a plea of former jeopardy is waived. Holmes v. State, 120 Ga. App. 281, 170 S.E.2d 312 (1969).

Plea in abatement not allowed after entrance of the general issue plea of not guilty. Wilkerson v. State, 14 Ga. App. 475, 81 S.E. 395 (1914).

Special demurrers not made at or before arraignment are waived. Carter v. State, 155 Ga. App. 49, 270 S.E.2d 233 (1980).

Pleas in abatement must be certain in intent and leave nothing to be supplied by intendment. Meriwether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940).

Pleas in abatement are dilatory pleas and are not favored. Meriwether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940).

Pleas in abatement must be strictly construed.

- In considering such pleas, every inference must be against the pleader. Meriwether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940).

Objection to selection of grand jurors through plea in abatement.

- Plea in abatement based on alleged irregularity in drawing names of grand jurors who returned the indictment should be filed before pleading to the merits, and not being so filed is too late. When the defendant is arrested and gives bond before the indictment is returned, the defendant should object to the grand jurors before return of the indictment, and, failing to do so, cannot afterwards object by plea in abatement. Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940).

Alleged disqualification of a grand juror propter affectum is not a valid ground for plea in abatement to an indictment, nor is it a good ground for a motion for a new trial after verdict, even though the parties were ignorant of such defect until after the verdict. Mitchell v. State, 69 Ga. App. 771, 26 S.E.2d 663 (1943).

Sufficiency of grand jury evidence may not be challenged by plea in abatement.

- When a competent witness or witnesses were sworn and examined before the grand jury before whom the indictment was preferred, a plea in abatement on the ground that the indictment was found on insufficient or illegal evidence or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged. The sufficiency of the evidence introduced before the grand jury is a question for determination by the grand jury and not by the court. Summers v. State, 63 Ga. App. 445, 11 S.E.2d 409 (1940).

Motion for new trial on double jeopardy grounds.

- When the special ground of a motion for new trial is that the appellant has been subject to double jeopardy, it is a matter for special plea, to be interposed at arraignment and ruled on at that time. Reid v. State, 119 Ga. App. 368, 166 S.E.2d 900 (1969).

Raising issue of defendant's insanity.

- If the insanity of the defendant is known to defendant's counsel, then counsel has a professional, moral, and legal duty to file a plea of insanity, as provided by law. If unknown, then it can be raised by a ground of a motion for a new trial by a proper showing. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

Denial of second plea in bar alleging same claim as first upheld.

- Because the court of appeals previously upheld the denial of the defendant's first plea in bar regarding the alleged denial of a speedy trial right, the trial court's order denying the defendant's second plea in bar on the same grounds was also upheld, despite the fact that the law of the case rule had been statutorily abolished. Bass v. State, 287 Ga. App. 600, 653 S.E.2d 749 (2007).

Denial of defendant's motion requesting that defendant be examined by psychiatrist.

- It is not error for a trial court to deny the defendant's motion requesting that the defendant be examined by a psychiatrist at county expense when the defendant had not entered a special plea of insanity at the time of trial. Huguley v. State, 120 Ga. App. 332, 170 S.E.2d 450 (1969), cert. denied, 400 U.S. 834, 91 S. Ct. 68, 27 L. Ed. 2d 66 (1970).

General and special demurrers distinguished.

- General demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978); Carter v. State, 155 Ga. App. 49, 270 S.E.2d 233 (1980).

Motion to quash indictment is general demurrer.

- Motion to quash is classified as a general rather than a special demurrer to an indictment. Traylor v. State, 165 Ga. App. 226, 299 S.E.2d 911 (1983).

Motions to quash an indictment must be filed prior to pleading to the merits. Sadler v. State, 124 Ga. App. 266, 183 S.E.2d 501 (1971).

Ineffective assistance of counsel.

- Because trial counsel failed to generally demur to the aggravated assault indictment which was so fundamentally flawed that the indictment charged no crime at all, and failed to file a motion in arrest of judgment after trial, counsel rendered ineffective assistance. Youngblood v. State, 253 Ga. App. 327, 558 S.E.2d 854 (2002).

O.C.G.A. § 17-7-111 does not preclude an oral objection to the sufficiency of an indictment or accusation at any time during trial if the indictment or accusation is so defective that judgment upon the indictment or accusation would be arrested. Pullen v. State, 199 Ga. App. 881, 406 S.E.2d 283 (1991).

Requirement that all motions and demurrers be made and filed at or before the time of arraignment, and the requirement of O.C.G.A. § 17-7-111 that such motions be in writing do not preclude an oral objection to the sufficiency of an indictment or accusation at any time during trial if the indictment or accusation is so defective that judgment upon the indictment or accusation would be arrested. Ross v. State, 235 Ga. App. 7, 508 S.E.2d 424 (1998).

Defendant's oral motion to quash indictment was ineffective.

- When the transcript revealed that the defendant, during a pre-trial hearing, made an oral motion to quash the indictment and when there was a question of a law enforcement officer's authority to make the initial stop in this case, the defendant's oral motion to quash the indictment against the defendant was ineffective for the purpose offered since the indictment was in the record and was in proper form and substance and since an objection to it must be in writing when an indictment is not on the indictment's face so defective that a motion in arrest of judgment would lie. State v. O'Quinn, 192 Ga. App. 359, 384 S.E.2d 888 (1989).

Trial court properly denied the defendant's oral motion in arrest of judgment or motion to dismiss or general demurrer, made after the jury was sworn but before the trial began, as while the nolle pros of the coindictee could have been drawn more explicitly, considering it in context and in light of a subsequent indictment, which only contained one count against the coindictee, there was no intent shown that the charges against the defendant required reindictment. Atkins v. State, 291 Ga. App. 863, 663 S.E.2d 286 (2008).

Necessity of writing.

- Defendant's motion to quash an accusation charging reckless driving was properly denied since the motion was not made in writing and was not raised at arraignment. Freeman v. State, 234 Ga. App. 110, 505 S.E.2d 836 (1998).

Exception to an indictment for formal defects must be taken by demurrer before trial. Foss v. State, 15 Ga. App. 478, 83 S.E. 880 (1914).

Effect of sustaining special demurrer.

- Sustaining of a special demurrer, the result of which is either to strike from or add to the material allegations of an indictment, is equivalent to sustaining a general demurrer and quashing the indictment. Gentry v. State, 63 Ga. App. 275, 11 S.E.2d 39 (1940).

How form of indictment excepted to.

- When the accused desires to take exception to the form of an indictment, it is necessary that the defendant do so by demurrer or motion to quash, made in writing and before pleading to the merits. Gower v. State, 71 Ga. App. 127, 30 S.E.2d 298 (1944); Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955); Lankford v. State, 204 Ga. App. 405, 419 S.E.2d 498 (1992), cert. denied, 506 U.S. 1051, 113 S. Ct. 972, 122 L. Ed. 2d 127 (1993).

Failure to plead venue.

- While the phrase "as prosecuting attorney for the county and state aforesaid" sufficiently established venue to support a violation of O.C.G.A. § 40-6-391(A)(1), the state's failure to sufficiently allege venue in order to sustain a second count, charging a violation of § 40-6-391(A)(5), supported the defendant's motion to quash the count and reversal of the conviction on the count. Werner v. State, 280 Ga. App. 853, 635 S.E.2d 234 (2006).

If the indictment or accusation is so defective that judgment upon the indictment or accusation would be arrested, attention may be called to this defect at any time during the trial, and the indictment or accusation may be quashed on oral motion. Gower v. State, 71 Ga. App. 127, 30 S.E.2d 298 (1944).

Procedure for complaining of defects and irregularities in indictment.

- Defects and irregularities in an indictment cannot be complained of in a ground for a motion for a new trial. Such must be taken advantage of by demurrer, plea in abatement, or plea in bar. Loomis v. Edwards, 80 Ga. App. 396, 56 S.E.2d 183 (1949), cert. denied, 339 U.S. 969, 70 S. Ct. 987, 94 L. Ed. 1377 (1950).

Attack on indictment for defects not apparent on face.

- Motion to quash, being merely a demurrer, is not a proper method of attacking an indictment for a defect not appearing upon its face, and position can properly be raised only by a plea in abatement. Lastinger v. State, 84 Ga. App. 760, 67 S.E.2d 411 (1951).

Burden is upon defendant to show that indictment was returned wholly upon illegal evidence. A failure to show that only incompetent evidence was presented to the grand jury will subject plea in abatement to dismissal. Meriwether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940).

Material amendment of an indictment.

- Indictment cannot be materially amended by striking from or adding to the indictment's allegations, except by the grand jury, and only by the grand jury before the indictment is returned into court. It is bad practice for the court to do either, and if such additions or subtractions materially affect the indictment, it becomes void and cannot be the basis of a conviction. Gentry v. State, 63 Ga. App. 275, 11 S.E.2d 39 (1940).

Post-conviction challenge to indictment.

- One who waives one's right to be tried upon an indictment perfect in form as well as substance, and takes one's chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless such defects are so great that the indictment is absolutely void. Tanner v. State, 90 Ga. App. 789, 84 S.E.2d 600 (1954).

When no demurrer to the indictment has been filed, the defendant will not be heard after conviction to urge defects in the indictment unless the defects are so great that the indictment is absolutely void. Ivie v. State, 151 Ga. App. 496, 260 S.E.2d 543 (1979).

Waiver of challenge to indictment.

- Defendant has a right to be tried upon an indictment that is perfect in form and substance, but this right can be waived under certain circumstances if a defendant fails to timely challenge the indictment. McKay v. State, 234 Ga. App. 556, 507 S.E.2d 484 (1998).

Exception to the denial of a motion to quash the indictment cannot be properly made a ground of a motion for new trial. Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955).

Indictment which charges an offense defined by a legislative act, in the language of the act, when the description of the acts alleged as constituting the offense is full enough to put the defendant on notice of the offense with which the defendant is charged, is sufficiently specific. Gaines v. State, 80 Ga. App. 512, 56 S.E.2d 772 (1949).

Accusation which alleges the violation of a statute in the language of the statute together with the other necessary allegations is sufficient to put the defendant on notice as against what facts and charges the defendant must contend as every essential ingredient of the offense charged is set forth in the accusation with sufficient clearness to enable the defendant to clearly understand the nature of the offense, and the accusation is exact enough to protect the defendant from a second jeopardy. Gaines v. State, 80 Ga. App. 512, 56 S.E.2d 772 (1949).

Attack on indictment on grounds that defendant's spouse testified before grand jury.

- If the defendant pleads guilty to a defective indictment in which the defendant has incriminated oneself, and the defendant's spouse has testified, it is too late afterwards, in proceedings instituted to secure the release of the defendant by writ of habeas corpus, to attack the indictment upon that ground. Bradford v. Mills, 208 Ga. 198, 66 S.E.2d 58 (1951).

Special demurrer.

- When a crime may be committed in more than one way, the failure to charge the manner in which the crime was committed subjects the indictment or accusation to special demurrer. Haska v. State, 240 Ga. App. 527, 523 S.E.2d 589 (1999); State v. Jones, 251 Ga. App. 192, 553 S.E.2d 631 (2001).

Indictment which fails to allege a specific date on which the offense occurred is not perfect in form and is subject to a timely special demurrer except when the evidence does not permit the state to identify a single date on which the offense occurred. State v. Gamblin, 251 Ga. App. 283, 553 S.E.2d 866 (2001).

For special demurrer to indictment charging robbery by force, see Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940).

For demurrer to indictment for automobile theft on grounds of vagueness, see Callahan v. State, 148 Ga. App. 555, 251 S.E.2d 790 (1978).

For special demurrer to indictment for liquor on which taxes not paid, eliminating surplusage, see Gentry v. State, 63 Ga. App. 275, 11 S.E.2d 39 (1940).

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 139 et seq., 479 et seq., 585 et seq. 41 Am. Jur. 2d, Indictments and Informations, § 282 et seq.

C.J.S.

- 22 C.J.S., Criminal Law, §§ 478 et seq., 499.

ALR.

- Guilty plea safeguards as applicable to stipulation allegedly amounting to guilty plea in state criminal trial, 17 A.L.R.4th 61.

When is dismissal of indictment appropriate remedy for misconduct of government official, 10 A.L.R. Fed. 3d 3.