Golden v. State

• Decision Date: 31 August 1932
• Docket Number: No. 22001.,22001.
• Parties: GOLDEN. v. STATE.
• Court: Georgia Court of Appeals

45 Ga.App. 501

165 S.E. 299

GOLDEN.

v.STATE.

No. 22001.

Court of Appeals of Georgia, Division No. 1.

Aug. 31, 1932.

Syllabus by the Court.

1. The court properly overruled the defendant's motion to quash the indictment.

2. Error requiring a hew trial was committed by the trial judge in stating in his charge to the jury that he believed it was admitted that the state's principal witness was an accomplice, when there was no such admission.

BROYLES, C. J., dissenting.

Error from Superior Court, Taliaferro County; C. J. Perryman, Judge.

P. A. Golden was convicted of arson, and he brings error.

Reversed.

J. A. Beazley, of Crawfordville, and Clement E. Sutton, of Washington, Ga., for plaintiff in error.

M. L. Felts, Sol. Gen., of Warrenton, for the State.

LUKE, J.

F. A. Golden was convicted of arson. The record brings to the consideration of this court the overruling of the defendant's motion to quash the indictment, and the overruling of his motion for a new trial.

Omitting some of the usual allegations, the indictment substantially alleges that: "On March 9, 1930, in Taliaferro county, Tommy Lyons, B. C. Lyons, and F. A. Golden did, with intent to defraud Ætna Insurance Company, * * * Phoenix Insurance Company, * * * and the Home Insurance Company, * * * set fire to one certain storehouse in the town of Sharon, Georgia, belonging to L. S. Jackson, and in which was located a stock of general merchandise and fixtures belonging to F. A. Golden, and did burn said storehouse and stock of merchandise and fixtures, and did cause the same to be burned, and did aid in the burning of the same, and did counsel the burning of the same, and did procure the burning of the same; said storehouse being then and there insured in the Phoenix Insurance Company * * * by L. S. Jackson for the sum of $1,500; and said stock of merchandise and fixtures being then and there the property of F. A. Golden, and being then and there insured in Ætna Insurance Company * * * for the sum of $4000, and the Phoenix Insurance Company * * * for the sum of $2500, and in the Home Insurance Company * * * for the sum of $3500; and the said accused having set fire to, * * * said storehouse of L. S. Jackson, and stock of general merchandise and fixtures of F. A. Golden, for the purpose of collecting the insurance on said stock of merchandise and fixtures from the aforesaid insurance companies, who had insured said stock of general merchandise and fixtures for the said F. A. Golden on the policies of insurance written by said companies as aforesaid, said insurance to be collected by the said F. A. Golden." The indictment further alleges that Golden actually collected large sums of money from the companies in which he carried his insurance, and thereby defrauded said companies.

The question presented by both exceptions pendente lite and special ground 4 of the motion for a new trial may be understood from the following quotation from the exceptions pendente lite: "A material allegation of the indictment is the averment that the storehouse of L. S. Jackson was burned, and that it was insured in the Phoenix Insurance Company of Hartford, Conn., for $1500. Theproof disclosed that the storehouse was insured in another company, The Ætna Insurance Company of Hartford, Conn. * * * At the close of the evidence, defendant's counsel moved the court to order the indictment quashed and defendant discharged, upon the grounds of a variance between the allegations of the indictment and the evidence of the named witness adduced by the State in support of the same. After argument, the court overruled the motion of defendant's counsel. * * *"

The act of 1924 (Ga. L. 1924, p. 193), section 3, provides that: "Any person who wilfully or maliciously, and with intent to injure or defraud the insurer, sets fire to or burns, or causes to be burned, or who aids, counsels, or procures the burning of any goods, wares, merchandise, or other chattels or personal property of any kind, the property of himself or of another, which shall at the time be insured by any person or corporation against loss or damage by fire, shall, upon conviction thereof, be sentenced to the penitentiary for not less than one nor more than five years." The preceding section of the same act contains practically the same provisions as those of the section quoted, except that it applies to certain buildings other than dwellings or outhouses, and fixes a severer penalty.

It will he observed from the indictment that Jackson owned the storehouse and the defendant owned the merchandise and fixtures; that the defendant "procured the burning * * of said storehouse of L. S. Jackson, and stock of general merchandise and fixtures of P. A. Golden, for the purpose of collecting the insurance on said stock of merchandise and fixtures from the aforesaid insurance companies who had insured said stock of general merchandise and fixtures for the said P. A. Golden;" and that Golden did actually collect insurance from said companies.

We are satisfied that the indictment is based upon section 3 of the act, quoted above, and not upon section 2; that the allegation that said storehouse was insured in a certain insurance company was immaterial to the state's case; and that the fact that the proof shows that said storehouse was insured in a different company from the one alleged in the indictment was no fatal variance between any material allegation of the indictment and the proof. "In criminal law an unnecessarily minute description of a necessary fact must be proved as charged, but an unnecessary description of an unnecessary fact need not be proved." Hall v. State, 120 Ga. 142 (1), 47 S. E. 519. We hold that the trial judge did not err in overruling the motion to quash the indictment. In any event, however, we do not think that the motion to quash was a proper course for the defendant to pursue. A motion to quash an indictment is a demurrer. Thoia asson v. State, 22 Ga. 499 (1); Tate v. State, 24 Ga. App. 279 (1), 100 S. E. 765. In Lamp-kin v. State, 87 Ga. 516, 523, 13 S. E. 523, 524, it is said: "When an indictment should contain more than one count, and contains one only, it is bad in form, and is subject to exception before trial. But no motion in arrest of judgment can be sustained for any matter not affecting the real merits of the offense [or offenses] charged. * * * It is a defect in the mode of pleading, and not in the substance or real merits of the matter pleaded. If the accused is unwilling to go to trial upon an indictment defective in form only, his remedy is to demur, or except in due time and manner. * * * If he insists upon it, he has a right to be tried upon an indictment good in form as well as in susbtance. But if he neglects matters of form until after verdict, he is then too late." We next quote from Wilder v. State, 47 Ga. 523, 524: "After having pleaded not guilty, the defendant could not move to quash the indictment upon any ground that would not have been good in...