Boswell v. State

• Decision Date: 05 November 1901
• Citation: 39 S.E. 897,114 Ga. 40
• Parties: BOSWELL v. STATE.
• Court: Georgia Supreme Court

39 S.E. 897

114 Ga. 40

BOSWELL v. STATE.

Supreme Court of Georgia

November 5, 1901

Syllabus by the Court.

1. An exception to the overruling of a demurrer to an indictment cannot be properly made in a motion for a new trial.

2. If an indictment is on its face fatally defective because based on an unconstitutional statute, or on one which for any reason is not a valid and subsisting law, advantage of such a defect must be taken by demurrer before pleading to the merits, or by motion in arrest of judgment after verdict.

3. An expert may testify to an opinion of his own derived from books.

4. The evidence authorized the verdict, and there was no error requiring the granting of a new trial.

Error from superior court, Putnam county; J. C. Hart, Judge.

Ben Boswell was convicted of poisoning a well, and brings error. Affirmed.

M. F Adams and J. W. Preston, for plaintiff in error.

H. G Lewis, Sol. Gen., for the State.

COBB J.

The accused was placed on trial upon an indictment based upon the act of December 19, 1896 (Acts 1896, p. 84), charging him with the offense of poisoning a well, and was convicted. His motion for a new trial having been overruled, he excepted.

1. Upon arraignment the accused filed a demurrer to the indictment which was overruled. There is no assignment of error upon the judgment overruling the demurrer, save in the motion for a new trial; and it is well settled now that an exception to a judgment overruling a demurrer to an indictment cannot be properly made a ground of a motion for a new trial. Flemister v. State, 81 Ga. 768, 7 S.E. 642 (2); Robson v. State, 83 Ga. 166, 9 S.E. 610.

2. Complaint is made in the motion for a new trial that the entire trial was void, for the reason that the act under which the accused was prosecuted was unconstitutional because the body of the act contains matter which is not referred to in the title. If an indictment fails to charge an offense against the law, for the reason that the statute upon which it is based is unconstitutional, or for any other reason is not valid and subsisting law, such a defect in the indictment can be taken advantage of only by demurrer before pleading to the merits, or by motion in arrest of judgment after verdict. That an indictment charges no offense is no reason for granting a new trial on that indictment, and for this reason such a defect in an indictment cannot be properly made a ground of a motion for a new trial. See Eaves v State, 113 Ga. 750, 39 S.E. 318 (7), and cases cited. It is true that in the case of Wood v. State, 46 Ga. 322, it was held that a motion for a new trial on the ground that an indictment was fatally defective, though not strictly proper, would be sustained under the practice in this state. But Judge McCay, in the opinion, says: "We know of no authority for demanding a verdict on a bad indictment. Under our law the jury find their verdict from their own judgment, and not by direction from the judge. We think, too, the practice is a bad one. Perhaps on a new indictment the court might hold the first indictment good, and an acquittal on it a bar. Under our practice the motion for a new trial generally covers any ground that would be good in arrest of judgment. At least, it has long been the practice to include in a motion for new trial such exceptions as this, and we will not disturb the practice, though strictly a motion in arrest of judgment is the proper mode of getting at such a defect as this, since if the indictment is bad a new trial cannot be had upon it." It is also true that in the case of Tate v. Cowart, 48 Ga. 540, there appears a statement both in the headnote and in the opinion of Mr. Chief Justice Warner to the effect that, when a motion for a new trial contains a ground which would be a proper ground of a motion in arrest of judgment, the motion for a new trial will be treated as a motion in arrest of judgment. Upon an examination of that case, however, it will be found that the statement in the opinion was purely obiter, and that the headnote was made by the reporter. It seems that neither the ruling in the Wood Case, nor the dictum of Judge Warner in the Tate Case, has ever been followed. On the contrary, in the case of White v. State, 93 Ga. 47, 19 S.E. 49, it was distinctly ruled that defects in an indictment afford no ground for a new trial, and that for matters affecting the real merits the remedy after trial is by motion in arrest of judgment. In the opinion in that case Mr. Justice Simmons distinctly refers to the Wood Case, and calls attention to the fact that, while an exception which would be good in arrest of judgment was sustained in that case notwithstanding it was made a ground of a motion for a new trial, still the practice was distinctly disapproved by the judge who wrote the opinion. The ruling made in the Wood Case has never, so far as we have been able to ascertain, been followed; and the ruling made in the White Case has been uniformly adhered to, and was distinctly followed in the Eaves Case, cited above. It was the unanimous opinion of three judges in the White Case that the ruling in the Wood Case was not controlling as authority; and this opinion, "whether right or wrong, has the same binding force upon subsequent members of the court as is given any unanimous decision of the court" by the law now contained in section 5588 of the Civil Code, which declares that a decision concurred...