Durden v. State

• Decision Date: 11 January 1923
• Docket Number: 13379.
• Citation: 116 S.E. 41,29 Ga.App. 548
• Parties: DURDEN v. STATE.
• Court: Georgia Court of Appeals

116 S.E. 41

29 Ga.App. 548

DURDEN v. STATE.

No. 13379.

Court of Appeals of Georgia, First Division

January 11, 1923

Rehearing Denied Feb. 20, 1923.

Syllabus by the Court.

Though every count of an indictment should appear upon its face to charge the defendant with a distinct offense, yet one count may refer to matter in any other count, so as to avoid unnecessary repetition.

(a) Where, as in this case, the first count charges the offense of forgery, setting out in full the instrument alleged to have been forged, and the second count charges the offense of uttering the forged instrument, showing the writing alleged to have been forged only by reference to the instrument copied in full in the preceding count, the second count is not, because of such reference only, defective and subject to demurrer.

All proper assignments of error have been considered and are without merit. The verdict, finding the defendant guilty of knowingly uttering a forgery, not being without evidence to support it, it was not error to overrule the motion for a new trial.

Error from Superior Court, Glynn County; J. I. Summerall, Judge.

R. W Durden was convicted of uttering a forged instrument, and he brings error. Affirmed.

Luke J., dissenting in part.

Krauss & Strong, Frank H. Harris, Henry O. Farr, and L. N Carrington, all of Brunswick, and Jas. H. Thomas, of Jesup for plaintiff in error.

Alvin V. Sellers, Sol. Gen., of Baxley, for the State.

LUKE J.

Durden was indicted upon two counts, the first for forgery, the second for knowingly uttering the forgery. He was acquitted upon the first count and convicted upon the second. Before arraignment he demurred to the indictment, and the demurrer was overruled. He excepted pendente lite. After conviction, he filed a motion in arrest of judgment and a motion for a new trial. His motion in arrest of judgment being overruled, he sued out a bill of exceptions to this court, assigning error only upon that judgment. The question then raised was by this court certified to the Supreme Court, and was decided adversely to the plaintiff in error. See Durden v. State, 152 Ga. 441, 110 S.E. 283; 28 Ga.App. 209, 111 S.E. 64. Subsequently his motion for a new trial was overruled by the lower court, whereupon he sued out a second bill of exceptions to this court, assigning error both upon the overruling of his demurrer and the overruling of his motion for a new trial. This is, therefore, the second appearance of the case here.

1. The first question now presented for decision is with respect to the defendant's demurrer. The indictment contains two counts. The first count charges the offense of forgery, incorporates a complete copy of the writing alleged to have been forged, and is otherwise full within itself. The second count charges the offense of uttering the forged instrument, without incorporating the writing alleged to have been forged, and showing it only by reference to the writing set out in full in the preceding count. The charging clause of the second count is that the defendant--

"did then and there unlawfully, falsely and fraudulently utter and publish as true the above-described false and fraudulent, forged and altered paper, acquittance and receipt, then and there knowing the same to be forged, and did then and there so utter and publish the same with intent then and there to defraud Mrs. E. Goette." (Italics ours.)

The demurrer and the motion in arrest of judgment were upon the same grounds, both attacking the second count of the indictment for its failure to show, otherwise than by reference to the preceding count, the nature of the forgery alleged to have been uttered. When this case was formerly before the Supreme Court it was held that: "The failure to set out the alleged forged instrument in the second count is not ground for arrest of judgment." Durden v. State, 152 Ga. 441, 110 S.E. 283.

A motion in arrest of judgment, however, goes only to matter affecting the real merits of the offense charged, while an appropriate timely special demurrer may reach any matter which may show the indictment defective in form only. The question now presented for decision therefore is: Can one count of an indictment refer to matter in any other count, so as to avoid useless repetition, without thereby crippling the count, so as to subject it to special demurrer on account of form?

The precise question seems to have never been decided by the reviewing courts of this state. At common law such practice was allowed in criminal cases, but not in civil cases. In 1 Chitty's Criminal Law, p. 250, dealing with the joinder of counts in an indictment, it is said:

"Though every count should appear upon the face of it to charge the defendant with a distinct offense, yet one count may refer to matter in any other count so as to avoid unnecessary repetitions."

On the same page and in the same connection the different rule obtaining in civil cases, together with the reason for the difference, is also referred to. Certainly that rule is yet of force in this state, unless it has been changed by statute.

The only statutory provision in this state either directly or indirectly affecting the question is in section 954 of the Penal Code. If it affects the point at all, it does so by reason of its general purpose, and not by reason of any specific reference...