Millhollan v. State
| Citation | 143 S.E.2d 730,221 Ga. 165 |
| Decision Date | 12 July 1965 |
| Docket Number | No. 22951,22951 |
| Parties | Jimmy MILLHOLLAN v. The STATE. |
| Court | Supreme Court of Georgia |
Syllabus by the Court
1. Since demurrers and motions to quash do not reach matters not appearing upon the face of an indictment, no question is raised here as to the validity of the indictment due to evidence being illegally obtained from the defendant or testimony not being heard separately in each case.
2. The indictment is not void for misjoinder of offenses.
3. The indictment is not invalid upon the grounds (a) that the statute upon which it is predicated refers to more than one subject, or (b) that it contains matter different from that expressed in its title.
4. The indictment is not defective for lack of precision in specifying the conduct made criminal.
5. The indictment is not, as a whole or in designated portions, too vague, indefinite or ambiguous.
Marson G. Dunaway, Jr., Rockmart, for plaintiff in error.
Dan Winn, Sol. Gen., Cedartown, John T. Perren, Dallas, for defendant in error.
The issue here is whether an indictment for indecent molestation of a child was subject to the demurrers and motion to quash lodged against it. The indictment, returned by the grand jury of Polk County against Jimmy Millhollan and others, was held sufficient by the superior court of that county. Error is assigned upon that judgment.
The indictment, in material part, charged that Millhollan, who is the defendant here, and two other indictees, 'hereafter referred to as the accused,' on a named date, took and attempted to take immoral, improper and indecent liberties with a named child under fourteen years of age, 'with intent of arousing, appealing to and, gratifying the lust and passions and sexual desires of said defendant and did commit a lewd and lascivious act upon and with the body and a part and member thereof of said child with intent of arousing, appealing to and gratifying the lust and passions and sexual desires of said defendant, said acts being that accused did force * * * [the child's] head onto the male organ of said defendant and did force his head at the said male organ, and did force him to come in contact with said male organ and did take said child into a certain old coal house in the yard of home in which * * * [another indictee] lived for the purpose of taking said immoral, improper and indecent liberties with said child, with intention of committing said lewd and lascivious acts with the body and members thereof of said child * * *.'
Since some of the numerous grounds of demurrer and motion to quash raise common questions, they will be treated together wherever possible for the sake of clarity and brevity.
1. It is contended that the indictment is void because it is based upon evidence illegally obtained from the defendant at a time when he was denied the right and benefit of counsel. It is further contended that the indictment charges different persons and different offenses without the grand jury hearing testimony in each case separately. Neither of these matters appears upon the face of the indictment, and thus neither demurrer nor motion to quash is a proper method of attack. See Jackson v. State, 64 Ga. 344, 346-347.
2. It is asserted that the indictment is void for misjoinder in that it charges separate and distinct offenses in one count, to wit, those embodied in Sections 1 and 2 of Georgia Laws 1950, pages 387, 388.
Those sections provide as follows:
In 1953 this statute was amended so as to reduce the age from 16 years to 14 years and to increase the maximum penalties from five years to 20 years. Ga.L.1953, Nov.Sess., pp. 408, 409. Except for these changes the 1950 Act was left intact.
The objection of misjoinder cannot be sustained. This statute forbidding the taking of immoral or improper or indecent liberties with a child provides several ways in which it may be violated, not repugnant to each other. The indictment here charges violation of the statute in several of these ways. Under these circumstances they may be joined in one count in the same indictment. 'Where an offense may be committed in one of several ways not repugnant to each other, a count is not double because it charges that the act was done in several of the ways prohibited by the statute.' Cody v. State, 118 Ga. 784(1), 45 S.E. 622. See also, Heath v. State, 91 Ga. 126, 16 S.E. 657; West, Ga.Digest, Indictment and Information, § 125(19).
3. It is urged that the indictment is void because the statute upon which it is predicated violates Art. VIII, Sec. VII, Par. VIII of the Georgia Constitution (Code Ann. § 2-1908) in stated particulars.
(a) It is first asserted that the statute refers to more than one subject matter in that it embraces three crimes, to wit: (1) taking or attempting to take immoral, improper or indecent liberties with a child, (2) committing or attempting to commit a lewd or lascivious act upon a child, and (3) taking, enticing, alluring, or persuading a child to any place for the purpose of committing or attempting to commit either of such acts.
The import of the constitutional provision sought to be invoked here was well stated in Hines v. Etheridge, 173 Ga. 870, 876, 162 S.E. 113:
Here, the subject of the legislation is the taking or attempting to take immoral, improper, or indecent liberties with children. All of the provisions of this...
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...this statute, with its beneficent purpose, spell out in exact words what constitutes the conduct made punishable." Millhollan v. State, 221 Ga. 165, 143 S.E.2d 730, 733 (1965); Anderson v. State, Alaska, 562 P.2d 351 "Although the language of the statute is broad and the prohibited behavior......
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