Sutton v. State
| Decision Date | 02 March 1905 |
| Citation | 122 Ga. 158,50 S.E. 60 |
| Court | Georgia Supreme Court |
| Parties | SUTTON. v. STATE. |
INDICTMENT—DEMURRER—KIDNAPPING.
1. When an indictment contained two counts, one good, the other bad, a general demurrer to the whole indictment was properly overruled.
[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 494.]
2. A count in an indictment for kidnapping, framed under the Penal Code of 1895, § 110, charging that the accused forcibly, maliciously and fraudulently took and enticed away a child under 18 years of age, against its will and without its consent, was fatally defective when it failed to allege that the child had no parent or guardian.
3. When there were two counts in an indictment, one good, the other fatally defective, and a demurrer to the bad count was improperly overruled, a general verdict of guilty could not be sustained.
(Syllabus by the Court)
Error from Superior Court, Decatur County; W. N. Spence, Judge.
O. N. Sutton was convicted of kidnapping, and brings error. Reversed.
O. N. Sutton was indicted in the superior court of Decatur county for the offense of kidnapping. The indictment contained two counts, the first based on the Penal Code of 1895, § 109, and charging that the accused, on a given date, In Decatur county, without lawful authority or warrant, abducted and stole away one Alice Philliaw, alias Alice Skelton, from said county, and sent and conveyed her beyond the limits of said county into Baker county, this state, against her will. The second count was based on the Penal Code of 1895, § 110, and charged that the accused, at the same time and place, did "forcibly, maliciously, and fraudulently lead, take, and carry away, and entice and decoy away one Alice Philliaw, alias Alice Skelton, against the will and without the consent of her the said Alice Philliaw, alias Alice Skelton, who was then and there a child under the age of eighteen years, " etc. On the trial the accused demurred generally to the whole Indictment, and demurred to the second count (1) because it charged no offense, and (2) because it did not allege, nor did it appear therefrom, that the child alleged to have been kidnapped did not have a parent or guardian. Both demurrers were overruled, and exceptions pendente lite were filed to such rulings. The case proceeded to trial, and there was a general verdict finding the accused guilty. He moved for a new trial on many grounds, which was refused. He excepted, assigning error upon the exceptions pendente lite, and upon the overruling of the motion for a new trial.
A. G. Powell, W. D. Sheffield, and Wm. I. Geer, for plaintiff in error.
W. E. Wooten, Sol. Gen., and Arnold & Arnold, for the State.
FISH, P. J. (after stating the facts). 1. The first count in the indictment was good, and the court properly overruled the demurrer aimed at the whole indictment. At common law, kidnapping is "the forcible abduction and carrying away of a man, woman, or child from their own country and sending them to another." 4 Black. Com. 259. The Penal Code of 1895, § 109, is but a statutory modification of the common-law definition of kidnapping. That section declares: "Every person who forcibly abducts or steals away any person, without lawful authority or warrant, from this state or any county thereof, and sends or conveys such person beyond the limits of the state or a county thereof against his will, is guilty of kidnapping." "Any person, " of course, means any man, woman, or child of any age. It has been held that when...
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Schooley v. Schooley
...if so doing would result in absurdity or in contravention of conceded public policy. A four year old child is “a person.” Sutton v. State, 122 Ga. 158, 50 S. E. 61. In the statute prohibiting and punishing rape, there is no limitation of who may commit it. But it would not be contended that......
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Schooley v. Schooley
...if so doing would result in absurdity or in contravention of conceded public policy. A four-year-old child is "a person." Sutton v. State, 122 Ga. 158 (50 S.E. 60, 61). the statute prohibiting and punishing rape, there is no limitation of who may commit it. But it would not be contended tha......
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State v. Gardner
...to have carnal knowledge of “any female” imbecile or rendered insensible; and since a four year old child is a “person” (Sutton v. State, 122 Ga. 158, 50 S. E. 61), such child could, on the theory of appellee, be guilty of rape, or of carnal knowledge of an imbecile, or of a woman by it ren......
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State v. Gardner
... ... woman assaulted, to be punished for rape, as principals. And ... so of Code Section 4758, which prohibits "any ... person" to have carnal knowledge of "any ... female" imbecile or rendered insensible; and since a ... four-year-old child is a "person," -- Sutton v ... State , (Ga.) 50 S.E. 60, at 61,--such child could, on ... the [174 Iowa 754] theory of appellee, be guilty of rape, or ... of carnal knowledge of an imbecile, or of a woman by it ... rendered insensible. No court would so interpret "any ... person." If it were claimed that a statute ... ...