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district attorney elected to charge defendant via grand jury indictment rather than by accusation. OCGA § 17-7-70(a) “does not give the defendant the right to choose whether he will be tried by indictment or accusation. The statute clearly notes that the district attorney ‘shall have authority to prefer accusations.’ OCGA § 17-7-70(a). Here, it is obvious from the record that the district attorney decided to proceed with a grand jury indictment rather than by accusation. This decision did not violate Webb’s rights to equal protection or due process.” Defendant’s attempt to waive indictment and file statutory speedy trial demand was thus ineffective. Singleton v. State, 266 Ga.App. 795, 598 S.E.2d 80 (April 6, 2004). Controlled substance offenses under OCGA § 16-13- 30 “may be tried by accusation instead of grand jury indictment whenever the accused ‘has waived either expressly or by operation of law’ the right to a commitment hearing. [Cits.]” Defendant “is bound by the express waiver of his counsel, thus authorizing his trial on the accusation. [Cit.] The trial court did not err in denying his motion in arrest of judgment.” Taylor v. State , 315 Ga.App. 667, 727 S.E.2d 274 (April 19, 2012) (felony shoplifting charge properly tried on accusation based on defense counsel’s waiver of commitment hearing). Mayo v. State, 277 Ga. 645, 594 S.E.2d 333 (March 8, 2004). Defendant’s murder conviction reversed; trial court had no subject matter jurisdiction where prosecution on this capital offense proceeded on accusation instead of indictment. “It makes no difference that Mayo stipulated to proceeding under an accusation—‘[p]arties cannot, by their consent, confer subject matter jurisdiction on a court that does not otherwise have it.’ [Cit.]” See OCGA § 17-7-70(a). H. MOTION TO QUASH/PLEA IN ABATEMENT, GENERALLY Bighams v. State, 296 Ga. 267, 765 S.E.2d 917 (November 17, 2014). Murder conviction affirmed; defendant waived objection to void indictment by failing to file same within 10 days of arraignment, waiting instead until amended motion for new trial, filed seven years later. Accord, Brooks v. State , 332 Ga.App. 396, 772 S.E.2d 838 (May 21, 2015). Shane v. State, 320 Ga.App. 1, 739 S.E.2d 9 (February 26, 2013). In prosecution for aggravated child molestation, trial court properly granted nolle prose rather than quashing indictment. Defendant moved to quash “arguing that the State was capable of narrowing the date range but had made no effort to do so. At a hearing on the motion to quash, the State conceded that Shane had been incarcerated for several months during this time period and stated that a grand jury had reindicted Shane that morning with a narrower date range. The State asked the court not to rule immediately on the motion to quash and allow it instead to present a nolle prosequi that afternoon or the next day, so that Shane would not be released from bond.” Distinguishing State v. Dempsey, 290 Ga. 763 (727 S.E.2d 670) (2012): “the Supreme Court reversed the trial court in Dempsey because the trial court made a legal error when it denied the motion to quash based on when the motion was filed. Here, the trial court made no legal error, but simply deferred ruling on the motion until the State submitted its nolle prosequi order.” “‘The trial court has discretion to order the entry of a nolle prosequi, instead of quashing the indictment, to avoid the application of OCGA § 17–7–53.1 [barring re-indictment after two indictments quashed].’ State v. Lejeune, 276 Ga. 179, 184(4) (576 S.E.2d 888) (2003).” But note, this was defendant’s first indictment. State v. Dempsey, 290 Ga. 763, 727 S.E.2d 670 (March 23, 2012). Trial court properly quashed one murder indictment, erred in failing to quash a second one. 1. First indictment should have been quashed because one member of grand jury was an elected official, not eligible to serve. “This Court long ago recognized that ‘[i]f a grand juror is not qualified under the law to serve as such, his presence would vitiate the action of the body.’ Betts v. State, 66 Ga. 508, 514(6) (1881). See also Reich v. State, 53 Ga. 73, 75 (1874), wherein a grand juror was ineligible to serve as he was not a citizen. ‘[I]t is now well settled that the incompetency of one grand juror renders an indictment void, no matter how many unexceptionable jurors join with him in finding the bill.’ Crawford v. Crow, 114 Ga. 282, 287 (40 SE 286) (1901). See also Harper v. State, 283 Ga. 102(1) (657 S.E.2d 213) (2008) (Service on the grand jury by one never actually selected for that service would ‘require a new indictment.’).” Accord, Bighams v. State , 296 Ga. 267, 765 S.E.2d 917 (November 17, 2014). 2. Second indictment was properly quashed because grand jury heard no evidence before returning it. Grand jury apparently relied on evidence it heard before the ineligible member was removed, but, as the prior grand jury was improperly constituted, “there was no prior legal proceeding upon which the grand jury could rely.” Based on Evans v. State, 17 Ga.App. 120 (86 S.E. 286) (1915) (actions of grand jury exceeding the maximum number of members were void, couldn’t be ratified by reducing the number). Distinguishing Fields v. State, 260 Ga. 331, 333(3) (393 S.E.2d 252) (1990) (properly constituted grand jury “was entitled to rely on the evidence it had previously considered in returning the original indictment.”). 3. Motion to quash properly filed within ten days after arraignment ; prior case law requiring challenges to make-up of grand jury to be filed prior to indictment was superseded by 2003 change to OCGA § 17-7-110, allowing “all” motions to be filed within ten days after arraignment. 4. Quashing of two indictments prohibits defendant’s further indictment. OCGA § 17-7-53.1.