Durden v. State

• Decision Date: 16 December 1921
• Docket Number: 2572.
• Citation: Durden v. State, 152 Ga. 441, 110 S.E. 283 (Ga. 1921)
• Parties: DURDEN v. STATE.
• Court: Georgia Supreme Court

110 S.E. 283

152 Ga. 441

DURDEN v. STATE.

No. 2572.

Supreme Court of Georgia

December 16, 1921

Rehearing Denied Jan. 13, 1922.

Syllabus by the Court.

Every indictment charging crime must be complete within itself, and charge the crime and every substantial element of the offense alleged to have been committed.

(a) Where an indictment contains more than one count, each count must be complete within itself; and, where an indictment charging forgery contains two counts, the first being complete within itself, including a copy of the instrument alleged to have been fraudulently forged and uttered, which is set out in full, and in the second count express reference to the instrument is made, thereby purporting to incorporate it into the second count, and thus charging all the substantial elements of the offense in the second count, the failure to set out the alleged forged instrument in the second count is not ground for arrest of judgment.

Where an indictment alleges, "the offense and offender being heretofore unknown," but fails to set forth the date when the alleged offense became known, such indictment is not so defective that after verdict and judgment a motion in arrest of judgment should be sustained on the ground that it affirmatively appears from the face of the indictment that the offense charged is barred by the statute of limitations and where the exception to the overruling of the demurrer to the indictment pointing out this alleged defect had not been preserved by exceptions pendente lite, and where the exception could not otherwise be considered by the court.

Under section 1062 of the Penal Code of 1910, the presiding judge may reduce certain felonies to misdemeanors without any recommendation from the jury; and where in such case the jury recommends the punishment of a felony as for a misdemeanor such recommendation is advisory.(a) The "Indeterminate Sentence Act" of 1919 did not repeal section 1062 of the Penal Code of 1910.

Certified Questions from Court of Appeals.

R. W Durden was convicted of uttering a forgery, and he brought error to the Court of Appeals, which certified questions to the Supreme Court.Questions answered.

Frank H. Harris, J. T. Colson, Krauss & Strong, and Henry O. Farr, all of Brunswick, for plaintiff in error.

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

HILL J.

The Court of Appeals desires instruction from the Supreme Court upon the following questions, a determination of which is necessary for the decision of this case:

1."Where an indictment is drawn in two counts, the first count charging the defendant with the forgery of 'a certain paper, acquittance, and receipt,' which is therein set out in full, and the second count charging the defendant with knowingly uttering a forgery, for that he did falsely and fraudulently utter and publish as true 'the above-described false, fraudulent, forged, and altered paper, acquittance, and receipt,' is the second count, the one under which the defendant was convicted, so defective that after verdict and judgment a motion in arrest of judgment should be sustained on the ground that the paper alleged to have been uttered and published was not set forth therein or annexed thereto, and where the exception to the overruling of the demurrer to the indictment pointing out this alleged defect had not been preserved by exceptions pendente lite, and where the exception could not otherwise be considered by this court?"

This question must be answered in the negative.Each count of the indictment should be complete within itself.The indictment must charge the crime and every substantial element of the offense alleged to have been committed.The second count of this indictment is complete within itself, because by express reference the alleged forged instrument is made a part of the count in the indictment, the instrument being set out in full in the first count, and by the use of the language "the above-described false, fraudulent, forged, and altered paper acquittance, and receipt," and by this express reference to the instrument incorporating the instrument into the second count, thus charging all the substantial elements of the offense in this count.In the case of Braxley v. State,143 Ga. 658, 85 S.E. 888, it was held by a majority of the court that--

"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

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