Accusation equivalent to old common-law information.

- Accusation provided for in this section as the basis for the trial of misdemeanor cases in the superior courts was comparable to, or the equivalent of, the old common-law information. Brown v. State, 82 Ga. App. 673, 62 S.E.2d 732 (1950).

Scope of jurisdiction.

- Court has jurisdiction to try, or accept a plea of guilty, of one charged with a felony before the grand jury has returned an indictment in felony cases, but does not have such jurisdiction as to those felonies punishable by death or life imprisonment. Webb v. Henlery, 209 Ga. 447, 74 S.E.2d 7 (1953), overruled on other grounds, Garmon v. Johnson, 243 Ga. 855, 257 S.E.2d 276 (1979).

Since the accusation to which the defendant pled guilty did not charge the defendant with a felony punishable by death, the trial court had jurisdiction to take the plea following the defendant's waiver of the indictment, and to sentence the defendant thereon, and the trial court did not err when the court denied the defendant's motion to void the conviction. Orr v. State, 276 Ga. 91, 575 S.E.2d 444 (2003).

Applicability to accusations in city courts.

- Former Code 1933, §§ 27-701.1, 27-703, and 27-704 (see O.C.G.A. §§ 17-7-51,17-7-54 and17-7-70) have no applicability to accusations in city courts when, under special legislation establishing the various city courts, it was provided that the accusation must be founded upon the affidavit of the prosecutor, and the affidavit was made a substitute for the formal finding of the grand jury as to the misdemeanors triable in the city courts in question. The affidavit which was the basis for the issuance of a warrant to arrest is not to be confused with the affidavit which formed the basis of the accusation in many of the city courts. Brown v. State, 82 Ga. App. 673, 62 S.E.2d 732 (1950).

Defendant does not choose between indictment or accusation.

- O.C.G.A. § 17-7-70(a) did not give the right to choose whether to be tried by indictment or accusation; the district attorney had the authority to prefer accusations. Webb v. State, 278 Ga. App. 9, 627 S.E.2d 925 (2006).

Offense must have been committed before making of affidavit.

- If trial is had upon accusation founded on affidavit there can be no conviction, unless it appears that the offense was committed before the making of the affidavit charging its commission. Dixon v. State, 155 Ga. App. 17, 270 S.E.2d 192 (1980).

Affidavit must be sworn to and signed.

- Affidavit upon which an accusation is based is void, unless the purported affidavit was in fact sworn to and the jurat signed at the time the affidavit was made. Dixon v. State, 155 Ga. App. 17, 270 S.E.2d 192 (1980).

Proper administration of oath must appear of record.

- In a criminal case the accusation is void, unless the oath is properly administered and this appears from the record, and the whole proceeding is a nullity. Dixon v. State, 155 Ga. App. 17, 270 S.E.2d 192 (1980).

Whole trial a nullity if affidavit void.

- Affidavit is essential, and if the instrument treated by the court and the parties as an affidavit is void, there is no foundation for the proceeding. The whole trial is a nullity. Bickley v. State, 150 Ga. App. 669, 258 S.E.2d 306 (1979).

Accusation cannot be broader than the affidavit, but, as the greater includes the lesser, if the affidavit is general, the accusation can be specific. McCann v. State, 158 Ga. App. 202, 279 S.E.2d 499 (1981).

Accusations are amendable to the time that issue is joined. Guess v. State, 155 Ga. App. 14, 270 S.E.2d 255 (1980).

That an indictment of a defendant was later necessary under O.C.G.A. § 17-7-70(a), O.C.G.A. § 40-13-3 did not destroy the validity of a formerly issued uniform traffic citation; the citation for felony vehicular homicide was not void, but expired and was superseded. State v. Perkins, 276 Ga. 621, 580 S.E.2d 523 (2003).

Purpose for allowing waiver.

- Purpose of this section, permitting persons charged with felony to waive indictment by grand jury, was to give a person who had been charged with a felony the right, with the concurrence of the prosecuting officer and the judge, to have the person's case disposed of without having to await the action of the grand jury, but that section expressly withholds such right when one is charged with a crime punishable by death or life imprisonment. Webb v. Henlery, 209 Ga. 447, 74 S.E.2d 7 (1953), overruled on other grounds, Garmon v. Johnson, 243 Ga. 855, 257 S.E.2d 276 (1979).

Grand jury waived.

- Defendant charged with the sale of cocaine, which is not a felony punishable by death, could waive indictment by the grand jury and enter a guilty plea on the accusation. Smith v. Wilson, 268 Ga. 38, 485 S.E.2d 197 (1997).

Waiver and consent in writing is jurisdictional requirement.

- Waiver and consent in writing by the accused being a necessary prerequisite to jurisdiction to try a person charged with a felony other than a capital felony upon an accusation, the sentences imposed based upon trials had upon accusations, without any waiver and consent in writing by the accused, are void, since the judgment of the court without jurisdiction is void. Roberson v. Balkcom, 212 Ga. 603, 94 S.E.2d 720 (1956).

Charge of felony obstruction of an officer by accusation instead of by grand jury indictment was not authorized because of the state's failure to obtain the defendant's waiver of the indictment in writing as required by O.C.G.A. § 17-7-70. Brackins v. State, 249 Ga. App. 788, 549 S.E.2d 775 (2001).

Defendant was initially charged by accusation with terroristic threats and aggravated stalking, which were not properly prosecuted without an indictment or a written waiver thereof pursuant to O.C.G.A. §§ 17-7-70.1 and17-7-70(a), the dismissal of the accusation after the jury was sworn and the indictment of the same charges was proper and there was no former jeopardy bar under O.C.G.A. § 16-1-8(d)(1), as the former prosecution under the indictment was void and of no effect. Armstrong v. State, 281 Ga. App. 297, 635 S.E.2d 880 (2006).

Defendant's conviction for aggravated assault was void for lack of jurisdiction and had to be reversed because the evidence showed that the defendant verbally waived the defendant's right to a grand jury indictment at the start of trial and a written waiver was required by O.C.G.A. § 17-7-70(a). Martinez v. State, 322 Ga. App. 63, 743 S.E.2d 621 (2013).

Waiver may be signed by attorney for accused.

- This section, insofar as it provides for waiver of indictment by a person charged with a crime, was satisfied by a waiver in writing signed by the attorney for the accused. Cook v. Wier, 185 Ga. 418, 195 S.E. 740 (1938).

Guilty plea waives written waiver requirement.

- In the case of a plea of guilty, such plea would waive any defense known and unknown, and this would include any deficiency in the written waiver required by this section. Balkcom v. McDaniel, 234 Ga. 470, 216 S.E.2d 328 (1975).

Contention that a specific written waiver of indictment was required by this section of one pleading guilty to a noncapital felony was without basis in the text of that section. Walker v. Hopper, 234 Ga. 123, 214 S.E.2d 553 (1975); Balkcom v. McDaniel, 234 Ga. 470, 216 S.E.2d 328 (1975).

Even though the defendant did not waive the right to be indicted on the charged offenses of aggravated assault and false imprisonment in writing, such was not required for a trial court to act upon the defendant's guilty plea because neither of the felonies charged carried a penalty of life imprisonment or death and the defendant consented to the trial judge's acting on the defendant's plea. Sanchez v. State, 259 Ga. App. 400, 577 S.E.2d 80 (2003).

Assent of accused not on record.

- When one count of the accusation filed by the district attorney recited that it was charged under O.C.G.A. § 16-13-30, which is a felony which may not be brought by accusation pursuant to O.C.G.A. § 17-7-70 without the assent of the accused, not on record in the case, nor was it one of those felonies listed in O.C.G.A. § 17-7-70.1 which, under circumstances not present in the case, may be pursued by accusation, the count was considered by the court to be brought under O.C.G.A. § 16-13-2(b), misdemeanor possession of less than an ounce of marijuana. Chadwick v. State, 236 Ga. App. 199, 511 S.E.2d 286 (1999).

This section related to guilty pleas upon accusations as well as after indictment. Garmon v. Johnson, 243 Ga. 855, 257 S.E.2d 276 (1979).

Absent waiver, only grand jury may subject defendant to felony trial.

- Grand jury is the only body authorized to subject the defendant to trial for a felony, unless the defendant waives indictment. Blake v. State, 109 Ga. App. 636, 137 S.E.2d 49, cert. denied, 379 U.S. 924, 85 S. Ct. 281, 13 L. Ed. 2d 337 (1964).

Indictment required for capital felony.

- Because the defendant was charged on an accusation for malice murder without an indictment, the trial court had no jurisdiction to accept the defendant's plea and sentence the defendant. Weatherbed v. State, 271 Ga. 736, 524 S.E.2d 452 (1999).

Indictment was required to confer subject matter jurisdiction on a trial court in a capital case, and a malice murder conviction was reversed after the trial proceeded on an accusation and not an indictment, despite the fact that the defendant had stipulated to proceeding under an accusation. Defendant's aggravated assault and possession of a firearm during the commission of a crime convictions were not capital felonies, and could, therefore, properly proceed under an accusation with the defendant's consent. Mayo v. State, 277 Ga. 645, 594 S.E.2d 333 (2004).

No distinction between "capital felonies" and felonies "punishable by death or life imprisonment."

- For the purposes of superior court jurisdiction under O.C.G.A. § 17-7-70, there is no distinction between "capital felonies" and felonies "punishable by death or life imprisonment"; each has the same meaning. Weatherbed v. State, 271 Ga. 736, 524 S.E.2d 452 (1999).

Failure to seek death penalty.

- Fact that the state did not seek the death penalty against the defendant did not take the case outside the ambit of O.C.G.A. § 17-7-70. Weatherbed v. State, 271 Ga. 736, 524 S.E.2d 452 (1999).

Variance between caption and contents of Ga. L. 1972, p. 623.

- Fact that the caption contained in Ga. L. 1972, p. 623 "that indictment by a grand jury shall not be required in certain cases" did not contain the word "felony" does not effect a fatal variance between the caption and the body of the Act, pursuant to Ga. Const. 1983, Art. III, Sec. V, Para. III. Keener v. MacDougall, 235 Ga. 288, 219 S.E.2d 377 (1975).

Good faith is presumed when state law obligates official to perform a ministerial duty, absent express evidence on the record of bad motive. Howell v. Tanner, 650 F.2d 610 (5th Cir. 1981), cert. denied, 456 U.S. 918, 102 S. Ct. 1775, 72 L. Ed. 2d 178, 456 U.S. 919, 102 S. Ct. 1777, 72 L. Ed. 2d 180 (1982).

Sheriff liability for false arrest where acting under instructions from district attorney.

- Sheriff could not be liable under civil rights statute, 42 U.S.C. § 1983, for false arrest and malicious prosecution because of the sheriff's action in swearing out the accusations for the trespass and firearms offenses for which the plaintiff had been arrested, since the sheriff was required by state law to issue accusations upon receipt of instructions from the district attorney. Howell v. Tanner, 650 F.2d 610 (5th Cir. 1981), cert. denied, 456 U.S. 918, 102 S. Ct. 1775, 72 L. Ed. 2d 178, 456 U.S. 919, 102 S. Ct. 1777, 72 L. Ed. 2d 180 (1982).

Motion for acquittal properly denied.

- After weighing the factors considered in determining whether the defendant's right to a speedy trial was violated, the appeals court upheld the denial of the defendant's plea in bar and demand for an acquittal as the defendant failed to show that any prejudice resulted from the delay in bringing the case to trial. Lackey v. State, 283 Ga. App. 139, 640 S.E.2d 717 (2006).

Trial court properly denied a defendant's motion for discharge and acquittal on statutory speedy trial grounds pursuant to O.C.G.A. § 17-7-170(a) because the defendant's speedy trial demand was premature and a nullity since the "complaint" was filed after the defendant's arrest, was not an accusation pursuant to O.C.G.A. §§ 17-7-70 and17-7-70.1, and the prosecution did not proceed on the "complaint." Campbell v. State, 294 Ga. App. 166, 669 S.E.2d 190 (2008).

Cited in Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936); Pope v. State, 92 Ga. App. 661, 89 S.E.2d 530 (1955); Crosby v. State, 100 Ga. App. 49, 110 S.E.2d 94 (1959); Cadle v. State, 101 Ga. App. 175, 113 S.E.2d 180 (1960); Mobley v. State, 101 Ga. App. 317, 113 S.E.2d 654 (1960); Day v. Kelley, 218 Ga. 688, 130 S.E.2d 206 (1963); Sweeney v. Balkcom, 358 F.2d 415 (5th Cir. 1966); Wiggins v. Smith, 228 Ga. 164, 184 S.E.2d 469 (1971); Jenkins v. Georgia, 418 U.S. 153, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974); Brown v. Caldwell, 231 Ga. 677, 203 S.E.2d 542 (1974); Keener v. MacDougall, 232 Ga. 273, 206 S.E.2d 519 (1974); Nelms v. State, 132 Ga. App. 689, 209 S.E.2d 110 (1974); Keener v. MacDougall, 233 Ga. 881, 213 S.E.2d 835 (1975); Gibson v. Giles, 242 Ga. 720, 251 S.E.2d 231 (1978); Bickley v. State, 243 Ga. 488, 255 S.E.2d 31 (1979); Holland v. State, 151 Ga. App. 189, 259 S.E.2d 187 (1979); Ivory v. State, 160 Ga. App. 193, 286 S.E.2d 435 (1981); Smith v. State, 218 Ga. App. 392, 461 S.E.2d 561 (1995); Jones v. State, 282 Ga. 784, 653 S.E.2d 456 (2007); Steillman v. State, 295 Ga. App. 778, 673 S.E.2d 286 (2009).

Only indictments are feasible for corporations.

- Only feasible method for charging corporations with crimes is through the return of an indictment by a grand jury. 1970 Op. Att'y Gen. No. 70-155.

Proceedings against persons imprisoned on other charges.

- Although the detainer procedure may be invoked by an accusation without a waiver of indictment by the grand jury, this procedure will not authorize the Board of Offender Rehabilitation to hold a prisoner after the prisoner's present sentence has expired. The district attorney can arrest the prisoner upon the prisoner's release and proceed against the prisoner as the prisoner would proceed against any other criminal defendant. 1969 Op. Att'y Gen. No. 69-410.

Discretion of district attorney.

- Decision as to whether to present an indictment to the grand jury lies within the discretion of the district attorney. There is misconduct only if the decision concerning prosecution is based upon some constitutionally impermissible reason such as race, religion, or the exercise of constitutional rights. 1988 Op. Att'y Gen. No. U88-25.

Motion to nolle prosequi.

- Once an indictment or accusation has been filed, a district attorney's motion to nolle prosequi or dead docket requires consent of the court. If the trial court refuses to grant the district attorney's motion to nolle prosequi or dead docket the case, the district attorney is not thereby disqualified. 1988 Op. Att'y Gen. No. U88-25.

Effect of pretrial diversion program.

- If an indictment or accusation has been filed against a person who successfully completes a pretrial diversion program, consent of the court is required before the criminal charge can be dismissed. If the person completes the pretrial diversion program prior to the filing of an indictment or accusation, consent of the court is not required. 1988 Op. Att'y Gen. No. U88-25.

ALR.

- Power of court to amend indictment, 7 A.L.R. 1516; 68 A.L.R. 928.

Right to waive indictment, information, or other formal accusation, 56 A.L.R.2d 837.

Accused's right to assistance of counsel at or prior to arraignment, 5 A.L.R.3d 1269.

Scope and extent and remedy or sanctions for infringement, of accused's right to communicate with his attorney, 5 A.L.R.3d 1360.