State v. Bragg , 213 Ga. App. 795 ( 1994 )

Judge Harold R. Banke.

Defendant James Earl Bragg was charged in an indictment with four counts of child molestation and two counts of aggravated sodomy. In the same indictment, defendant Robert William Bragg was charged with three counts of child molestation and two counts of aggravated sodomy. Defendants filed a plea in abatement which was granted by the trial court. The State appeals pursuant to OCGA § 5-7-1 (1).

At the hearing on defendants’ plea in abatement, Investigator John Stevens testified that he was the only witness to testify before the grand jury regarding defendants’ case and that his testimony was not based on personal knowledge. He also stated that he had not talked to the victim or the defendants and that all of his information came from the police report and information he collected through conversations with the victim’s mother, the physician who examined the victim, a prosecutor from the Gwinnett County District Attorney’s office and a detective with the Clayton County Police Department. The trial judge ruled that all of Detective Stevens’ testimony was hearsay; therefore there was no probative evidence before the grand jury.

This case is controlled by Summers v. State, 63 Ga. App. 445 (2) (11 SE2d 409) (1940), in which this court held: “[W]here ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, 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. Competent witnesses having been sworn and examined before the grand jury, the sufficiency of the evidence introduced before it is a question for determination by the grand jury, and not by the court.” Summers, supra at 449. See also Felker v. State, 252 Ga. 351 (2) (314 SE2d 621) (1984).

Decided June 21, 1994 Reconsiderations denied July 12, 1994 Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellant. Nan M. Deegan, Cowen & Cowen, Martin L. Cowen III, for appellees.

Judgment reversed.

Birdsong, P. J., concurs. Blackburn, J., concurs specially.