Head v. State
| Decision Date | 27 January 1943 |
| Docket Number | 29921. |
| Citation | 24 S.E.2d 145,68 Ga.App. 759 |
| Parties | HEAD v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
At common law, to be "murder" death must have occurred within a year and a day from date wound was inflicted.
Under the constitution, principles of the common law are in force unless expressly repealed by statute. Const.art. 12, par 3.
There are no common law offenses in Georgia.
The common law principle that to constitute murder death must result within a year and a day from date wound was inflicted not having been expressly changed by statute, is in force in Georgia.
An indictment alleging all other essentials and a pistol wound inflicted on a day more than a year and a day prior to date of death did not allege a "criminal homicide". Code, §§ 26-1002, 27-601; Const. art. 12, par. 3.
The only difference between proof of crime of "murder" and "assault with intent to murder" is that in the former the state must prove that death ensued within a year and a day from date injury was inflicted, and in the latter death does not ensue within that period of time. Code, §§ 26-1002, 27-601; Const.art. 12, par. 3.
A demurrer admits all well pleaded allegations in indictment.
An indictment containing every essential element to be proved to establish offense of murder except that death did not ensue within a year and a day was sufficient to charge accused with embraced crimes of "assault with intent to murder" and "illegal shooting" at another. Code, §§ 26-1002, 27-601; Const.art. 12, par. 3.
1. At common law, to constitute the offense of criminal homicide death must result within a year and a day from the infliction of the wound. This common-law principle, not having been expressly changed by statute, is of force in this State. An indictment alleging all other essentials and a pistol wound inflicted on August 11, 1941, resulting in death on August 22, 1942, does not set out a criminal homicide.
2. But an indictment alleging facts as indicated in headnote 1 is sufficient in law on which to try the accused for the lesser grades of crime involved therein, namely, assault with intent to murder and illegally shooting at another.
This case is here on exceptions to a judgment overruling a demurrer to an indictment. The body of the indictment charges The demurrer to the indictment attacks it, (a) because the allegations set out no offense under the laws of Georgia, and (b) because the indictment on its face shows that the deceased did not die within a year and a day from the date the wound was inflicted. There are two questions presented for decision: 1. Is the indictment sufficient to charge any crime of homicide under the laws of this State? 2. Is the indictment sufficient to charge any other criminal offense?
Ed Wohlwender, Jr., of Columbus, for plaintiff in error.
Hubert Calhoun, Sol. Gen., of Columbus, for defendant in error.
1. (a) So far as we have been able to determine all the authorities are agreed that by the English common law, to be murder the death must have occurred within a year and a day from the date the wound was inflicted. Wharton on Homicide, 3 ed. 19, par. 18; 26 Amer.Juris. 190, § 46; State v. Dailey, 191 Ind. 678, 134 N.E. 481, 20 A.L.R. 1004, annotations 1006.
(b) The Constitution, art. 12, par. 3 (Code, § 2-8503), declares "All laws now of force in this State, not inconsistent with this Constitution and the ordinances of this Convention, shall remain of force until the same are modified or repealed by the General Assembly." The above provision of our constitution renders of force the principles and doctrines of the common law unless expressly repealed by statute. Higdon v. Bell, 25 Ga.App. 54(4), 102 S.E. 546; Grimmett v. Barnwell, 184 Ga. 461, 464, 192 S.E. 191, 116 A.L.R. 257.
(c) The only statutes in this State pertinent to this principle relating to the offense of murder are: (1) The Code, § 27-601, which defines the limitation periods of the various offenses prescribed in this State. It refers to the time within which the indictment may be found and filed in the proper court to begin the prosecution. For murder it is any time after the death of the person killed. (2) The Code, § 26-1002, which defines murder as follows: "Murder is the unlawful killing of a human being, in the peace of the State, by a person of sound memory and discretion, with malice aforethought, either express or implied." It will be noticed that the two sections mentioned make no reference as to the time death should ensue from the date the wound was inflicted, to constitute the offense of murder.
(d) There are no common-law offenses in Georgia. The Code, § 26-201, reads as follows: "A crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention, or criminal negligence." See Jenkins v. State, 14 Ga.App. 276, 80 S.E. 688; Chambers v. State, 194 Ga. 773, 22 S.E.2d 487. However, the question before us is not one of offense, but one of procedure and evidence.
(e) We find in 21 Cyclopedia of Law and Procedure, 703, the following: "Murder, as defined by the common law, is where a person of sound mind and discretion unlawfully kills a human being, in the peace of the sovereign, with malice and aforethought, express or implied." It will be observed that the definition of murder of our State and that under the common law are almost identical.
(f) In 30 C.J. 107, § 298, this rule is announced: "In the absence of a relaxation of the common-law rules, an indictment for homicide must allege the date of the death of the victim, for the reason that it must appear from the indictment that the death occurred within a year and a day from the date of the infliction of the injury." In all the States, so far as we have been able to find, where the common-law doctrine that to be murder the death must ensue within a year and a day from the date of the infliction of the injury, such fact as to time of death must appear from the allegations of the indictment, else it is bad. In Georgia the question in so far as the indictment is concerned is controlled by the ruling to the effect that if the indictment alleges that a person was killed on a date specified in the indictment it alleges that he died on that date. See Reed v. State, 148 Ga. 18, 95 S.E. 692; Thomas v. State, 71 Ga. 44. This ruling was based on the principle that since the proof is not confined to the particular date alleged in the indictment it is sufficient if it shows the commission of the crime within the limitation prescribed by law. It will thus be seen that the principle stated in Reed v. State, supra, does not go to the extent of holding that an indictment need not allege that the death occurred within a year and a day from the date the injury was inflicted, but rather holds that where an indictment alleges that a person was killed on a specified date immediate death is alleged.
(g) We are prepared to say with assurance that the question as to whether, in order to constitute the offense of illegal homicide in this State, the proof must show that the death occurred within a year and a day from the infliction of the injury has not previously been presented to either this court or to our Supreme Court. We have correlated the above principles of law briefly with the thought that they might be helpful as we follow through with discussion and cite authorities on this particular question involved in our opinion.
Clark's Criminal Procedure, chapter 7, p. 239, states: "If it does not appear that the death of the person charged to have killed happened within a year and a day after the wound was given, the indictment will be deemed fatally defective, since when death does not ensue within such time the law presumes that it proceeded from some other cause." See 13 R.C.L 903 § 208, to the same effect. While, as we have stated, our courts have not passed directly on the question before us, our Supreme Court has indirectly dealt with the principle and seems to have recognized that the doctrine of the common law, that death must result within a year and a day from the infliction of the injury, prevails in Georgia. In Dacy v. State, 17 Ga. 439, 442, Justice Lumpkin, in deciding a misdemeanor case, stated: ...
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