Adkins v. State

• Decision Date: 15 November 1897
• Citation: 29 S.E. 432,103 Ga. 5
• Parties: ADKINS v. STATE.
• Court: Georgia Supreme Court

29 S.E. 432

103 Ga. 5

ADKINS v. STATE.

Supreme Court of Georgia

November 15, 1897

Syllabus by the Court.

1. An indictment which charges that the offense was committed on a day subsequent to the finding of the bill will be held bad on special demurrer before pleading to the merits; but following the decisions of this court in cases of McMath v State, 55 Ga. 303, and Jones v. State, Id. 625 a motion in arrest of judgment based on this ground comes too late, and cannot be sustained. (a) There was no request in the present case to review the decisions just mentioned.

2. The charges complained of, if in any respect erroneous, were not as applied to the facts of this case, harmful to the accused. The charge, as a whole, submitted the case fairly to the jury. There was sufficient evidence to authorize the verdict, and the trial judge committed no error in refusing to grant a new trial.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Carey Adkins was convicted of arson. His motions in arrest of judgment and for a new trial were overruled, and he brings error. Affirmed.

John R. Cooper, for plaintiff in error.

Robt. Hodges, Sol. Gen., for the State.

COBB J.

On April 19, 1897, during the April term of the superior court of Bibb county, an indictment was returned against Carey Adkins, charging him with the crime of arson. The offense was alleged to have been committed on the "31st day of December, 1897." The accused entered a plea of "not guilty," and upon the trial was convicted. A motion in arrest of judgment was made, on the ground that the indictment charged the offense to have been committed on a day subsequent to the finding of the bill. This motion was overruled. A motion for a new trial was made, which was also overruled. To the judgment of the court overruling these motions, the accused excepted.

1. The first question presented in this case arises upon the overruling of the motion in arrest of judgment. Is an indictment which alleges the crime charged to have been committed on a day subsequent to the finding of the bill so fatally defective that judgment thereon will be arrested after verdict? An indictment which fails to allege the time at which the offense charged was committed would be informal and imperfect, and the accused would have the right to take advantage of this defect, provided he make the point at the proper time. A person charged with crime "is entitled, if he demand it in time, to have a perfect indictment in form as to the essential elements of the time and place"; and, when this defect is taken advantage of by special demurrer before arraignment, the indictment will be quashed. Bailey v. State, 65 Ga. 410. While an allegation of time is necessary to make a valid indictment, proof that the crime was committed on the day alleged is not necessary, unless the offense charged belongs to that class in which time is of the essence of the offense. McLane v. State, 4 Ga. 341; Dacy v. State, 17 Ga. 439. The offense may be charged to have been committed on any day previous to the finding of the bill, and may be proven at any time within the statute of limitations. Cook v. State, 11 Ga. 53; Chapman v. State, 18 Ga. 736; Jackson v. State, 64 Ga. 347.

The case of Conner v. State, 25 Ga. 515, is often cited as authority to sustain the proposition that it is not good ground to arrest the judgment in a criminal case that the offense was charged to have been committed on a day subsequent to the finding of the indictment. We think however, upon an examination of the facts in this case as they appear in the original record filed in the clerk's office, that it is not a binding authority on this point. At the September term, 1857, of the superior court of Sumter county, Conner was presented by the grand jury charged with the offense of simple larceny, alleged to have been committed on the 15th day of December, 1857. Upon this presentment, the solicitor general framed an indictment, which alleged the offense to have been committed on the 15th day of December, 1855. The accused entered a plea of not guilty, and, upon the issue thus formed, the jury returned a verdict of guilty. Thereupon the accused made a motion in arrest of judgment, upon the following grounds: (1) "That the special presentment on which the bill of indictment was founded was null and void, because it charged the offense to have been committed on a day subsequent to the finding of the grand jury; that, the special presentment being void, no bill of indictment could be founded thereon, upon which a trial could be had"; (2) "that the bill of indictment charges the offense to have been committed on a day different from that alleged in the special presentment, and that said variance is fatal." A motion for a new trial was also made, and four of the grounds therein were as follows: (2) "Because the special presentment on which the bill of indictment was found was not presented to the jury on the demand of the prisoner, the same being made after the jury were impaneled"; (3) "because the court permitted testimony to be given to the jury after objection by the prisoner, the jury having been impaneled upon the bill of indictment without the special presentment"; (4) "because the court refused to hear testimony to show that the prisoner was arraigned on the special presentment, and not on the bill of indictment, and refused the demand of the prisoner that he be arraigned on the bill of indictment"; (5) "because the court refused the arraignment as stated in the last ground, and permitted the trial to proceed after motion by the prisoner to exclude testimony from the jury until he was arraigned upon the bill of indictment." It seems that the point that the accused desired to make was that there was a variance between the presentment and the indictment as to the time alleged. He was placed on trial on the indictment. This is clear, for the bill of exceptions so recites. If he had demanded a copy of the indictment, he would have seen that the date in the indictment was different from the date in the presentment. It appears from the record that he waived copy of the indictment before arraignment. This being true, it is clear that the assignments of error in the grounds of the motion for a new trial above quoted were not well taken. After having waived copy of the indictment and entered a plea of "not guilty," it is too late, when evidence is about to be submitted to the jury on the issue thus formed, to raise objections to the indictment which could have been discovered, and should have been raised by special demurrer before pleading to the merits. The variance in date between the presentment and the indictment was not fatal. The indictment was regular on its face, and that it did not follow the presentment cannot be taken advantage of after pleading to the merits. This seems to have been the view that Judge Lumpkin took of the matter, for he uses this language: "As to the multifarious objections to the special presentment and indictment, jointly and separately, it is enough to say that they all come too late." It is true that he then proceeds to discuss the point raised by the motion in arrest of judgment, and comes to the conclusion that, when the indictment alleges a day subsequent to the finding of the bill, it is equivalent to alleging an impossible day, and that an indictment alleging an impossible day would be held good on motion in arrest of judgment, using the following language: "Have not all the courts, both in England and this country, settled it so long ago that the memory of man runneth not to the contrary, that, while some day must be stated, any other may be proven? Who does not see that if it be immaterial to prove the day as charged, that no day or an impossible day will do just as well? But it will be replied that it never was decided, but that the time charged must be before the accusation is preferred. And I concede this to be so, at least for the purposes of the argument. But let us look at the reason of the thing. Suppose the day be laid subsequent to the finding of the grand jury; it is the same in effect as stating an impossible day, as the fortieth day of May; and if it be correct that any day within the statute of limitations, and before an indictment found, will suffice, it is quite clear that no day, or one that is impossible, will do just as well." Judge Benning, in his concurring opinion, agrees to the judgment overruling the ...