Gazaway v. State

• Decision Date: 11 April 1911
• Docket Number: (No. 3,142.)
• Citation: 70 S.E. 978,9 Ga.App. 194
• Parties: GAZAWAY. v. STATE.
• Court: Georgia Court of Appeals

70 S.E. 978

9 Ga.App. 194

GAZAWAY.

v.STATE.

(No. 3, 142.)

Court of Appeals of Georgia.

April 11, 1911.

(Syllabus by the Court.)

1. Criminal Law (§ 968^*)—Indictment and Information (§ 201*)—Motion in Arrest of Judgment — Grounds — Trial — Waiver of Defects.

"No motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offense charged in the indictment." The indictment in the present case was demurrable, but not void, and the court did not err in refusing to arrest the judgment. The decision is controlled by the ruling of this court in Lanier v. State, 5 Ga. App. 472, 63 S. E. 536. "One who waives his right to be tried upon an indictment perfect in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless those defects are so great that the accusation is absolutely void." "Exceptions which go merely to the form of the indictment, if not taken before joinder of issue, are considered to be waived."

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 968;* Indictment and Information, Cent. Dig. §§ 640-650; Dec. Dig. § 201.*]

(Additional Syllabus by Editorial Staff.)

2. Criminal Law (§ 970*) — Prosecution — Sufficiency of Indictment.

Pen. Code 1910, § 424, prohibits any person from willfully interrupting or disturbing any public school, or any assemblage or meeting of such school lawfully and peaceably held for the purpose of scientific, literary, social or religious improvements. Held that while such section only includes public schools, etc., and "any assemblage or meeting of any such school" for the purposes mentioned, it embraces any persons who may be lawfully present as spectators or guests at any of the exercises of such school; and an indictment charging that accused willfully interrupted and disturbed a congregation of persons assembled at a certain public school then lawfully and peaceably held for the purposes mentioned in the section, though it might have been demurrable, was not so defective in substance as to be the basis of a motion in arrest, because thecongregation mentioned was so plainly disconnected from the school that no offense was charged, it being reasonably inferable that the congregation mentioned was a part of the school then in session.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970.^2-*]

Error from Superior Court, Gordon County; A. W. Fite, Judge.

Paul Gazaway was convicted of willfully interrupting and disturbing a congregation assembled at a public school for the purpose of scientific, literary, and social improvement, and he brings error. Affirmed.

Maddox, McCamy & Shumate, for plaintiff in error.

T. C. Milner, Sol. Gen., and Geo. W. Stevens, for the State.

RUSSELL, J. The plaintiff in error was indicted for a violation of the statute which prohibits any person from willfully interrupting or disturbing "any public school, private school, or Sunday school, or any assemblage or meeting of any such school, lawfully and peacefully held for the purpose of scientific, literary, social, or religious improvement" (Pen. Code 1910, § 424); and upon his conviction he moved to arrest the judgment. The indictment charged that the defendant did "unlawfully and with force of arms willfully interrupt and disturb a congregation of persons assembled at a public school at Beason's schoolhouse in said county, then and there lawfully and peaceably held for scientific, literary, and sociable improvement, by then and there being intoxicated, and by cursing, and by loud and boisterous discourse, contrary to the laws of said state, the good order, peace, and dignity thereof."

The motion in arrest of judgment attacks the indictment as being defective in substance and void, and alleges that it does not charge any offense under the laws of Georgia. It may be that the indictment is ambiguous, and would have been subject to a demurrer, because the defendant was entitled to know, if he cared to know, the exact nature of the assemblage which he was charged with disturbing, and the exact relation of the assemblage to the school at Beason's school-house, which it was alleged was assembled for literary, scientific, and social purposes; but he waived his right to demur. Upon the demurrer the accusation would have been construed most strongly against the state. [1] Upon the motion in arrest of judgment it must be construed most strongly against the movant; and the motion will not reach any defects in the indictment, unless it be so fatally defective that judgment cannot...