Gilmore v. State

• Citation: 45 S.E. 226,118 Ga. 299
• Parties: GILMORE v. STATE.
• Decision Date: 11 August 1903
• Court: Georgia Supreme Court

45 S.E. 226

118 Ga. 299

GILMORE v. STATE.

Supreme Court of Georgia

August 11, 1903

Syllabus by the Court.

1. Exceptions which go merely to the form of an indictment must be made by motion to quash or demurrer in writing before pleading to the merits. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested.

2. The omission of the words, "tending to debauch the morals," in an accusation based upon Pen. Code 1895, § 390, for a notorious act of public indecency, is not such a defect as can be reached by an oral motion to quash.

3. The evidence, though not entirely satisfactory, is sufficient to bring the case within the rule that, where there is any evidence to support the verdict, this court will not interfere with the discretion of the trial judge in overruling the motion for a new trial.

Error from City Court of Griffin; E. W. Hammond, Judge.

Turner Gilmore was convicted of crime, and brings error. Affirmed.

T. E Patterson, for plaintiff in error.

J. D Boyd, for the State.

COBB J.

The accused was placed on trial upon an accusation charging him with a violation of Pen. Code 1895, § 390, it being alleged that he was guilty of a notorious act of public indecency consisting of the exposure of his private parts in a public place, where he might have been seen by many persons, and where he was in fact seen by two persons, one a man and the other a woman; the accusation concluding with the words, "contrary to the laws of said state," etc. Before pleading to the accusation, the accused moved orally to quash the same on the ground that it failed to charge that the act of public indecency alleged "tended to debauch the morals." This motion was overruled. Having been convicted, the accused moved for a new trial, which was denied, and he filed a bill of exceptions complaining of the refusal of the court to sustain his motion to dismiss the accusation and to grant him a new trial.

1. Pen. Code 1895, § 950, provides that "if the prisoner, upon being arraigned, shall demur to the indictment, *** the demurrer *** shall be made in writing." Where the accused desires to take exception to the form of an indictment or accusation, it is essential that he should do so by a demurrer or motion to quash, made in writing, and before pleading to the merits. If, however, the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion. These rules are clearly deducible from the decisions of this court dealing with the law embraced in the section of the Code above quoted. See Thomasson v. State, 22 Ga. 499 (1); Jordan v. State, Id. 546 (3); Wilder v. State, 47 Ga. 523; Thomas v. State, 69 Ga. 747; Wimbish v. State, 70 Ga. 718; Sims v. State, 110 Ga. 290, 34 S.E. 1020; King v. State (Ga.) 43 S.E. 426.

2. It is, therefore, necessary to determine whether the motion to quash pointed out such a defect in the accusation as would have been good in arrest of judgment; or, in other words whether the omission to allege that the act of public indecency "tended to debauch the morals" was a fatal defect, and rendered the accusation void on its face. The section of the Code under which the accusation was framed provides as follows: "Any person who shall be guilty of open lewdness, or any notorious act of public indecency, tending to debauch the morals, *** shall be guilty of a misdemeanor." Pen. Code 1895, § 390. The public and indecent exposure of the person and kindred acts were offenses at common law. 12 Am. & Eng. Enc. L. (2d Ed.) 538. See, also, Morris v. State, 109 Ga. 351, 34 S.E. 577. The section of the Code under consideration was manifestly an effort to codify the common law on the subject. See Cobb's Dig. p. 815. Offenses of this nature were made punishable at common law because they tended to corrupt the morals, or were subversive of morality. 1 Hawk. P. C. 358. Mr. Bishop defines exposure of the person to be such an intentional exhibition in a public place of the naked human body as is calculated to shock the feelings of chastity in those who witness it, "or to corrupt their morals." 1 Bish. New Cr. L. § 1125. In United States v. Bebout (D. C.) 28 F. 522, it was said that the test which determines the obscenity or indecency of a publication under the act of Congress prohibiting the sending through the mails of obscene or indecent publications is whether the tendency of the matter is to deprave and corrupt the morals of those whose minds are open to such influences, and into whose hands the publications may fall. See, also, in this connection, State v. Rose, 32 Mo. 560; 2 Whart. Cr. L. § § 1432, 1468. The tendency to corrupt or subvert the morals was merely descriptive of the act necessary to constitute the offense. It was no part of the offense itself. It was not descriptive of the intention with which the act was committed. A person may have been guilty of an act having this effect without having designed to bring about this result by the commission of the act. The only way the effect of the act could be judged was by the act itself. The question whether a given...