This appeal is from the grant of a petition for a writ of certiorari. On January 6, 2011, a Cobb County grand jury returned an indictment against appellee Dwight Brown in Judge George Kreeger’s courtroom in the newly constructed Cobb County courthouse. Appellee filed a motion in abatement alleging the indictment was not returned in open court. Upon holding a hearing on the motion, the trial court agreed with appellee and quashed the indictment. The State appealed the trial court’s ruling and the Court of Appeals affirmed. State v. Brown, 315 Ga. App. 282 726 SE2d 764 2012. We granted the State’s petition for certiorari, posing the following question to the parties: “Did the Court of Appeals err in affirming the dismissal of Brown’s indictment on the ground that the indictment had not been returned in open court” For reasons that follow, we affirm.
1. For over a century the rule in Georgia has been that a grand jury indictment must be returned “into open court.” See Sampson v. State, 124 Ga. 776 53 SE 332 1906. See also Zugar v. State, 194 Ga. 285, 288 21 SE2d 647 1942; Barlow v. State, 127 Ga. 58 56 SE 131 1906; Sellars v. State, 113 Ga. App. 510 1 149 SE2d 158 1966; Clinkscales v. State, 102 Ga. App. 670, 673 117 SE2d 229 1960; Cadle v. State, 101 Ga. App. 175 113 SE2d 180 1960. “It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.” Zugar, 194 Ga. at 290. The term “open court,” as far as returning the indictment is concerned, means that the indictment is returned in a “place where court is being held open to the public with the judge and the clerk present.” Id. at 289. See also Cadle, 101 Ga. App. at 180 “the place of the reception of the indictment must be one where the court is being held open to the public.”. A failure to return the indictment in open court is per se injurious to the defendant. Zugar, 194 Ga. at 291.
