Braxley v. State

• Decision Date: 03 July 1915
• Docket Number: 433.
• Citation: Braxley v. State, 143 Ga. 658, 85 S.E. 888 (Ga. 1915)
• Parties: BRAXLEY v. STATE.
• Court: Georgia Supreme Court

85 S.E. 888

143 Ga. 658

BRAXLEY v. STATE.

No. 433.

Supreme Court of Georgia

July 3, 1915

Syllabus by the Court.

An indictment, containing two counts, was headed, "Georgia Baldwin County.In the Superior Court of Said County."The first count began: "The grand jurors selected chosen, and sworn for the county of Baldwin, to wit [jurors' names], in the name and behalf of the citizens of Georgia, charge and accuse," etc.The second count began: "And the jurors aforesaid, on their oaths aforesaid, do further charge and accuse," etc.Held, that the second count in the indictment should not be stricken on demurrer on the ground of the omission to state that the charge against the accused is made "in the name and behalf of the citizens of Georgia."

Where the grand jurors regularly serving in the superior court have been discharged for the term, and the court has finally adjourned for the term, the judge has no jurisdiction to pass an order in vacation, requiring the attendance of such discharged grand jurors, so as to empower them, without being again sworn or charged, to prefer an accusation for crime.

Certified Questions from Court of Appeals.

J. H Braxley was convicted of being accessory before the fact to a burglary, and brings error to the Court of Appeals, which certified certain questions to the Supreme Court.First question answered in the negative, and second question in the affirmative.

Atkinson and Hill, JJ., dissenting.

John R Cooper, of Macon, and Sibley & Sibley, of Milledgeville, for plaintiff in error.

Jos. E. Pottle, Sol.Gen., John T. Allen, of Milledgeville, and J. R. Pottle, of Albany, for the State.

EVANS, P.J.

The Supreme Court is asked by the Court of Appeals, whether--

"a count in an indictment, in which it is not stated, either literally or in substance, that the charge which is preferred is made 'in the name and behalf of the citizens of Georgia,' is subject to demurrer because of this omission."

The record accompanying the question discloses that the plaintiff in error was convicted of the offense of accessory before the fact, under an indictment containing two counts, the first charging him with the crime of burglary, and the second as being accessory before the fact to the burglary charged in the first count, the first count being as follows:

"State of Georgia, Baldwin County.In the Superior Court of Said County.The grand jurors selected, chosen, and sworn for the county of Baldwin, to wit [the jurors' names are here stated], in the name and behalf of the citizens of Georgia, charge and accuse John Braxley with the offense of burglary, for that," etc.

The second count begins:

"And the jurors aforesaid, on their oaths aforesaid, do further charge and accuse the said Jno.Braxley with the offense of felony, for that," etc.

Section 954 of the Penal Code is as follows:

"Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury.The form of every indictment or accusation shall be as follows: 'Georgia, _____ County.The grand jurors selected, chosen, and sworn for the county of _____, to wit:_____, in the name and behalf of the citizens of Georgia, charge and accuse A. B., of the county and state aforesaid, with the offense of _____; for that the said A. B. (here state the offense, and the time and place of committing the same, with sufficient certainty), contrary to the laws of said state, the good order, peace, and dignity thereof.'If there should be more than one count, each additional count shall commence with the following form: 'And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said A. B. with having committed the offense of _____ (here state the offense as before directed); for that,' " etc.

The plain intendment is that literalness of form is not demanded.Certainly it could never have been the legislative intent that a less strict observance of the demands of this section should apply to the description of the offense charged than to the mere form of the paper in which such charge is stated.The indictment is declared to be sufficiently technical which states the charge "so plainly that the nature of the offense charged may be easily understood by the jury," and it would be contrary to the spirit of the statute to require the mere formal parts of the indictment to be stated with literal exactness while its essence may be stated so as to be easily understood by the jury.Loyd v. State,45 Ga. 57.This court has held that the omission of a statement of the defendant's residence is not fatal.Studstill v. State, 7 Ga. 2;Tarver v. State,123 Ga. 494, 51 S.E. 501.Where an indictment was headed, "Georgia, Liberty County," this was held sufficient to show for what county the grand jurors were drawn and served and of what county they were, notwithstanding the omission to fill in the blank prescribed in the form that "the grand jurors selected, chosen, and sworn for the county of ______, to wit,"etc. Stevens v. State, 76 Ga. 96.In Horne v. State,37 Ga. 80, 92 Am.Dec. 49, it was ruled that an omission from an indictment of the words, "in the name and behalf of the citizens of Georgia" is not ground for arrest of judgment.There is an obiter remark that if the exception had been taken on demurrer, it would have been good.In Hardin v. State,106 Ga. 384, 32 S.E. 365, 71 Am.St.Rep. 269, the indictment did not conclude with the words, "contrary to the laws of said state, the good order, peace, and dignity thereof," and it was held to be defective on that account.

In the opinion in that case Judge Lewis used language suggestive that the statute should be strictly applied; but we do not understand that the court meant to apply the doctrine of absolute literalness in a matter of bare form.

It is clearly apparent from the indictment that the grand jurors were chosen and sworn at the regular term of the superior court of Baldwin county; that they were acting as such in preferring a charge for a violation of a criminal statute.That they were preferring that charge "in the name and behalf of the citizens of Georgia" is manifest from the indictment as a whole.In the first count they expressly so state, and the whole proceeding, considered in connection with the law appertaining to indictments, indicates as much.It is urged that one count in a pleading cannot aid defects in another count.That rule of pleading prevents the allegation of a cause of action in one count from being projected into another count to supply the latter's deficiencies.We do not dispute the rule in this respect, but that rule has never been carried to the extent that such formal parts of the petition, as the address to the court, should be carried into each count.In the Hardin Case, supra, the concluding words of the statute were omitted, and no words of substitute were stated; there was nothing in the indictment that could be construed as taking their place.The case in hand is quite different, as the indictment is pregnant with the meaning that the charge is made by the grand jurors in the name and behalf of the citizens of Georgia.We accordingly answer the question propounded in the negative.

2.The second question is:

"Though a judge of the superior court may, during a term of court, recall a grand jury of the same term, which has been discharged for the term, and they may then legally indict one charged with crime (Bird v. State,142 Ga. 596, 83 S.E. 238), has a judge of the superior court jurisdiction to pass an order in vacation, at a place not within the jurisdiction of the court, requiring the attendance of such discharged grand jurors, so as to empower them, without being again sworn or charged, to prefer an accusation for crime?"

It is suggested in the brief of counsel for the state that the term of court had not finally adjourned for the term, but had taken a recess to a later day, and that the question should be answered on the basis that there had been no adjournment for the term.That would not afford the information the Court of Appeals requests.On the doctrine of Bird v. State, supra, the Court of Appeals recognizes that if the court had not finally adjourned for the term, the grand jury could be reconvoked, but asks the question on the basis that the court had adjourned for the term.The term will continue until it expires by operation of law, unless expressly adjourned in a manner provided by law.Liverpool, etc., Insurance Co. v. Peoples' Bank of Mansfield,143 Ga. 355, 85 S.E. 114.Treating the question as if there was a final adjournment of court for the term, it must be answered in the negative.After the adjournment of a term the grand jury became functus officio."Judges of the superior courts'cannot exercise any power out of term time, except the authority is expressly granted; but they may, by order granted in term, render a judgment in vacation.'Civil Code 1910, § 4854."Tucker v. Huson Ice & Machine Works, 142 Ga. 83, 82 S.E. 496.

There is no express provision of law authorizing a judge of the superior court, out of term time, to call together persons who were grand jurors at a former term, so as to act as grand juries, except at a special term.Civil Code, § 4876.

All the Justices concur, except

ATKINSON and HILL, JJ.(dissenting).

J. H Braxley was indicted upon the charge of felony.The case was tried upon the hypothesis that the indictment contained two counts; the first charging the defendant as perpetrator of the crime of burglary, and the second as accessory before the fact, by counseling others to commit the...