Burke v. State
| Decision Date | 01 December 1967 |
| Docket Number | No. 2,No. 43106,43106,2 |
| Parties | William B. BURKE v. The STATE |
| Court | Georgia Court of Appeals |
Mitchell & Mitchell, Coy H. Temples, Dalton, for appellant.
R. L. Vining, Jr., Sol. Gen., Dalton, for appellee.
Syllabus Opinion by the Court
The appeal in this case is from a judgment of conviction and sentence for the offense of burglary.
The indictment returned against the defendant, appellant, in this case contained two counts: (1)
The defendant demurred to Count 2 of the indictment, praying that it be stricken on the grounds that (1) it failed to set forth any allegation of a crime against the law of the State, and (2) that there was no express reference incorporating the allegations of Count 1 into Count 2. The trial court entered an order overruling the appellant's demurrers and this order is enumerated as error.
The defendant also, subsequent to his arraignment but before pleading to the merits, made a motion to quash the indictment on the ground that the grand jury was improperly constituted in that one of the grand jurors had been excused from grand jury service at the term at which he was scheduled to serve and allowed to choose whether he would (1) serve on the traverse jury of such term or (2) return and serve on the grand jury at the May term, 1967. The grand juror took the latter option which is the term at which the indictment was returned against the defendant. The motion to quash was overruled by the trial court and this ruling is enumerated as error. Held:
1. If the words 'Count Two' in the indictment be disregarded and the entire indictment read as a whole it will be seen that but one offense is charged along with an allegation that the defendant had previously been convicted and sentenced for burglary. Code Ann. § 27-2511, commonly referred to as the 'habitual criminal' statute, the validity of which is not here questioned, authorizes the pleading and proving of prior convictions in order to obtain a maximum sentence for second offenders.
The court is of the view, and so holds, that the words 'Count Two' are surplusage and their presence does not require the subsequent language in the indictment to be construed as an attempt to charge the defendant with an offense. And in the absence of an attempt to charge an additional offense, there was no basis for either of the defendant's demurrers and the trial court did not err in overruling them.
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Chappell v. State
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