2020 Georgia Code
Title 17 - Criminal Procedure
Chapter 7 - Pretrial Proceedings
Article 3 - Indictments
§ 17-7-53. Operation of Two Returns of "No Bill" on Charge as Bar to Future Prosecution for Same Charge

Two returns of "no bill" by grand juries on the same charge or allegation shall be a bar to any future prosecution of a person for the same offense under the same or another name; provided, however, that, if the returns have been procured by the fraudulent conduct of the person charged or there is newly discovered evidence, upon proof, the judge may allow a third bill to be presented, found, and prosecuted.

(Laws 1850, Cobb's 1851 Digest, p. 864; Code 1863, § 4591; Code 1868, § 4612; Code 1873, § 4708; Code 1882, § 4708; Penal Code 1895, § 930; Penal Code 1910, § 955; Code 1933, § 27-702.)

- Multiple jeopardy, U.S. Const., amend. 5 and Ga. Const. 1983, Art. I, Sec. I, Para. XVIII.

JUDICIAL DECISIONS

Intent.

- This section was passed to protect the people of this state from vexatious prosecution in cases where grand juries may hereafter refuse to find the true bills. Lowry v. Thompson, 53 Ga. App. 71, 184 S.E. 891 (1936).

- This section has not changed the common law with reference to the fact that the defendant was entitled to be discharged without further answer after a return of the first "no bill." Lowry v. Thompson, 53 Ga. App. 71, 184 S.E. 891 (1936).

- 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).

- After the return of a first "no bill", the party against whom the indictment is sought is discharged without further answer, but a fresh bill may afterwards be preferred to a subsequent grand jury. Lowry v. Thompson, 53 Ga. App. 71, 184 S.E. 891 (1936).

After the return of a first "no bill", the party against whom the indictment is sought is discharged without further answer. Curcio v. Sanders, 109 Ga. App. 548, 136 S.E.2d 406 (1964).

Return of a first "no bill" was no bar to the prosecution of the accused under a "true bill" subsequently returned since under this section the return of two "no bills" by grand juries on the same charge or accusation was necessary to constitute a bar to future prosecution for the same offense. Curcio v. Sanders, 109 Ga. App. 548, 136 S.E.2d 406 (1964).

When 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 the first "no bill", and is released from recognizance along with the surety thereon, subject to being rearrested and new recognizance required upon the initiation of a new bill of indictment. Curcio v. Sanders, 109 Ga. App. 548, 136 S.E.2d 406 (1964).

- After a grand jury has returned into court a true bill of indictment, and the indictment has been entered on the minutes of the superior court by the court's clerk, the court obtains jurisdiction of the case, and the grand jury is without authority, at the same term of the court, to recall the true bill, erase the entry of "true bill", and make an entry of "no bill" on the indictment. Gibson v. State, 162 Ga. 504, 134 S.E. 326, aff'd, 162 Ga. 504, 134 S.E. 326 (1926).

- Person discharged is not entitled to an order upon the minutes of the superior court discharging the person from the offense or crime therein contained. Christmas v. State, 53 Ga. 81 (1874).

- Entry of "no bill" on the minutes or the original "no bill" is the highest evidence of the action of the grand jury. When it is accounted for, individual grand jurors may testify to the facts. Elliott v. State, 1 Ga. App. 113, 57 S.E. 972 (1907).

Mere statement by the prisoner's attorney to the jailer that the prisoner should be discharged because the grand jury had, upon investigation of the charge made against the prisoner, returned the first "no bill," is not sufficient proof of that return, when the jailer wants further proof and demands the proof, nor would it be such notice as would be conclusive on the sheriff, or jailer, or such notice as the jailer must then act on immediately at the jailer's peril. Even if it charged the jailer with the duty of making further inquiry, the jailer would be entitled to a reasonable time for this purpose before taking further action. Lowry v. Thompson, 53 Ga. 71, 184 S.E. 891 (1936).

- Allegation or proof of a return of "no bill" by even one grand jury on an indictment is deemed a sufficient prima facie showing that a prosecution has terminated. Sykes v. South Side Atlanta Bank, 53 Ga. App. 450, 186 S.E. 464 (1936).

- Defense granted by this section may be pled in bar or given in evidence under the general issue. Elliott v. State, 1 Ga. App. 113, 57 S.E. 972 (1907).

Cited in Barlow v. State, 127 Ga. 58, 56 S.E. 131 (1906); State v. Griffin, 268 Ga. 540, 491 S.E.2d 340 (1997).

RESEARCH REFERENCES

ALR.

- Unlawful arrest as bar to prosecution under subsequent indictment or information, 56 A.L.R. 260.

Power of grand jury to withdraw or alter indictment, or return of "not a true bill", 82 A.L.R. 1057.

Right of prosecution to review of decision quashing or dismissing indictment or information, or sustaining demurrer thereto, 92 A.L.R. 1137.