Henderson v. State

• Decision Date: 24 July 1901
• Citation: 113 Ga. 1148,39 S.E. 446
• Parties: HENDERSON . v. STATE.
• Court: Georgia Supreme Court

39 S.E. 446

113 Ga. 1148

HENDERSON .

v.STATE.

Supreme Court of Georgia.

July 24, 1901.

STABBING—INDICTMENT.

An alternative charge in an accusation that the accused cut and stabbed a named person with a knife, "or some other like instrument, " renders the accusation bad on special demurrer.

Lewis, J., dissenting.

(Syllabus by the Court.)

Error from city court of Macon; W. D. Nottingham, Judge.

Stewart Henderson was indicted for stabbing. A demurrer to the indictment was overruled, and he brings error. Reversed.

Marion W. Harris and R. D. Feagin, for plaintiff in error.

Wm. Brunson, Sol. Gen., for the State.

COBB, J. The accused was arraigned upon an accusation charging him with the offense of stabbing, it being therein alleged that he did "unlawfully, with a knife, or some other like instrument, cut and stab" a named person. To this accusation the accused demurred upon the ground "that the charge is in the alternative, " and for this reason the accusation is fatally defective. The demurrer was overruled, and he excepted.

Pleadings which are in the alternative aredefective In form, and this defect may be taken advantage of by special demurrer. Shipman, Com. Law PL § 405, p. 266; Steph. PL (Heard) *387, 388; Wbart. Cr. PL (9th Ed.) § 161; 10 Enc. PL & Prac. p. 538. This ancient and well-settled rule of pleading is still of force in this state. Sanders v. State, 86 Ga. 717, 12 S. E. 1058 (2); Grantham v. State, 89 Ga. 121, 14 S. E. 892 (2). Every alternative statement in an indictment, however, will not vitiate it. If the disjunctive can be properly construed to be synonymous with "to wit, " the alternative allegation will not render the indictment bad. So it was held that an indictment for horse stealing, which charged that the horse stolen was of a "bay or brown" color, would not, on account of this alternative statement, be held bad, because "bay" and "brown" meant the same thing. State v. Gilbert, 13 Vt 647. See, also, State v. Ellis, 4 Mo. 474; Cobb v. State, 45 Ga. 11. If that which follows the disjunctive In the indictment can be properly construed to be merely descriptive of that which precedes it, and not an independent allegation, the alternative statement will not make the indictment fatally defective. See State v. Hester, 48 Ark. 40, 2 S. W. 339. Finally, if the disjunctive and all that follows it can be rejected as surplusage, then the alternative averment will not be ground for quashing the indictment. State v. Corrigan, 24 Conn. 286; State v. Newsom, 13 W. Va. 859. The rule seems to be that, if the disjunctive averment need not be supported by proof, or if the proof which is to be admitted thereunder is the same as that which would be admitted under the immediately preceding averment, or something which would be purely explanatory thereof, the insertion of the disjunctive allegation will not render the pleading defective. When this rule is applied to the indictment involved in the present ease, it can be readily seen that the disjunctive is not used in the sense of "to wit, " because that which follows refers to a different instrument from a knife, although it is true it refers to an instrument of a like nature. Neither can that which follows the disjunctive be treated as explanatory of the word "knife, " because it distinctly appears that the language was not intended to refer to a knife, but to some other instrument of a like character. Can it be properly rejected as surplusage? As we understand the rule, no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or...