Fulford v. The State Of Ga.

• Decision Date: 31 January 1874
• Citation: 50 Ga. 591
• Parties: WILLIAM FULFORD, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.
• Court: Georgia Supreme Court

50 Ga. 591

WILLIAM FULFORD, plaintiff in error. v. THE STATE OF GEORGIA, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Criminal law. Indictment. Before Judge Strozer. Mitchell Superior Court. May Adjourned Term, 1873.

William Fulford was placed on trial upon an indictment for the offense of an assault with intent to commit murder, alleged to have been committed upon the person of J. A. Conway, on June 23d, 1873. The indictment contained also a count charging the defendant as a principal in the second degree, as follows:

"And the jurors aforesaid, upon their oaths aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse the said H. B. Humphries, of the county and State aforesaid, with the offense of an assault with intent to murder, as principal in the first degree, and William Fulford and L. S. Shackelford, of the county and State aforesaid, as principal in the second degree, with the offense of assault with intent to murder. For that the said H. B. Humphries, on the *twenty-third day of June, in the year eighteen hundred and seventy-three, in the county aforesaid, did then and there unlawfully, and with force of arms, in and upon one J. A. Conway, with a certain wooden stick of one and a half inches in diameter, and three feet long, of the value of one dollar, the same being a weapon likely to produce death, did make an assault with the intent then and there, the said J. A. Conway, then and there as aforesaid, wilfully, feloniously, and of malice aforethought, to kill and murder, and the said J. A. Conway then and there did beat, wound and ill-treat. And the jurors aforesaid, on their oaths aforesaid, do further say that William Fulford and L. S. Shackelford, in the county aforesaid, on the twenty-third day of June, in the year eighteen hundred andseventy-three, were present, aiding and abetting the said H. B. Humphries, (by pushing, striking, assaulting and threatening the said J. A. Conway,) the said offense of an assault with intent to murder aforesaid, in manner aforesaid, to do and commit, contrary to the law of said State, " etc.

The defendant pleaded not guilty. After plea filed, and after the jurors had been put upon the prisoner, and after the Court had refused to require the Solicitor General to elect upon which count he would proceed, the Court, over the objection of defendant, allowed the indictment to be amended by striking from the second count the following words: "by pushing, striking, assaulting and threatening the said J. A. Conway, " said words being embraced in () in the above copy of said count. To this ruling the defendant excepted.

The jury found the defendant guilty upon the second count and recommended him to the mercy of the Court,

He moved for a new trial upon numerous grounds, and amongst them on account of error in the ruling aforesaid.

The motion was overruled, and defendant excepted.

T. R. Lyon; C. O. Davis, for plaintiff in error.

B. B Bower, Solicitor General, for the State.

*TRIPPE, Judge.

The indictment in this case not only charged the de» fendant, as principal in the second degree, in being present) aiding and abetting the chief perpetrator of the alleged offense but proceeded further and specified the acts whereby the aiding and abetting were done. The prosecuting counsel, on motion, struck these descriptive averments from the indictment, over the objection of defendant.

We recognize the rule that it is not necessary to prove allegations in an indictment which are immaterial or purely surplusage. But the question is, what are immaterial averments? Or, rather, when do averments which might have been omitted become material—or, at least, so enter into the indictment as framed that they cannot be stricken or rejected as surplusage? Starkie on Evidence, volume 3, page 1539, says it is a most general rule that no allegation which is descriptive of the identity of that which is legally essential to the claim or charge, can ever be rejected; and on page 1542, same volume, makes it...