I think the case should be affirmed. The Code, § 89-9908, provides that a copy of the indictment for malpractice "shall be served on the defendant before it is laid before the grand jury. The prosecutor and the defendant, and their witnesses, shall have the right of appearing before and being heard by the grand jury. The indictment, if found true by the grand jury, shall, as in other cases, be tried by a petit jury." The service required by this section was made. The ground of the plea in abatement on which the majority opinion is based merely alleged that the defendant was physically unable, on account of such physical condition, to appear before the grand jury both on the day that he received notice of the hearing to be held before the grand jury and on the next day when the indictment was found. It does not set forth affirmatively that the defendant was unable to give the grand jury notice of his condition, nor does it show that he had a meritorious showing which, if it had been made before the grand jury, would probably have eventuated in a finding different from the one made. I therefore think the demurrer to the plea in abatement was properly sustained. Even before the act of 1895 (Ga. L. 1895, p. 45), now Code, § 110-404, the court recognized and enforced a well-settled rule that it would never disturb a verdict, judgment, or a finding, unless "there ought be another hearing that would probably eventuate differently from that already had." Cotton *Page 174 States Life Insurance Co. v. Edwards, 74 Ga. 220, 233. See Beall v.Marietta Paper-Mill Co., 45 Ga. 28 (2), where it was held: "As there is nothing in the motion to set aside the judgment, or in fact before the judge on the hearing of the same, to show affirmatively that, if a new trial was had, the defendant could show any substantial defense, it was error in the court to grant the motion." Also Phillips v. Taber,83 Ga. 565, 571 (10 S.E. 270), where it was held: "In order for a defendant to set aside a verdict and judgment on the ground of his absence for providential cause, he must not only show that he was sick and unable to attend the court, and unable to give the court notice of his condition, but he must go further and show to the court that he had a meritorious defense to the action, and show by his affidavit or the affidavits of others, such facts as would render it improbable or at least doubtful that the plaintiff would be entitled to recover. It is not enough for him to swear that he has a meritorious defense to the action, without going further and showing the facts upon which such defense is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial; because it would be useless to set aside a verdict and go through another trial to have the same verdict rendered by the jury."
The practical effect of the ruling by the majority of this court is to allow the accused not only to ignore the grand jury but to unnecessarily impede it in the discharge of its duty. The grand jury was entitled to notice of his sickness in the absence of some reason why he was unable to give them notice of his condition, so that they could make an investigation of their own and ascertain then and there his true condition, and, if the facts so warranted, continue the case without going through the useless form of finding the indictment. Under the majority ruling the accused, by merely showing that he was too sick to attend the hearing before the grand jury, would prevent the grand jury from deliberating on his case, irrespective of whether or not he could show he would have exercised his privilege, if he had been physically able, and appeared before the grand jury and presented any substantial reason why the indictment should not be found. Whether sick or well, he may have preferred to refrain from going before the grand jury. Under the majority holding the grand jury would never be reasonably *Page 175 safe in proceeding to indictment for this offense, even after notice had been given to the accused to appear, according to the terms of the statute, unless they first sent forth and found out whether the accused was in good health. It seems to me it would be useless to abate or quash the indictment here and go through another hearing before the grand jury, and have another trial before a petit jury, when there is nothing in the plea in abatement to affirmatively show that if another hearing was had before the grand jury the defendant could show any substantial reason why the indictment should not be found as true. Or, even if he (whether sick or well) had such a reason (whether meritorious or not), yet he may have preferred to refrain from exercising his privilege of urging it before the grand jury, and preferred to wait and disclose and urge his defense for the first time at the regular trial. The writer thinks it would be preferable to require the accused to show in his plea in abatement that if the court did what he sought to have done it would not be doing a useless thing.