Johnson v. State

• Decision Date: 08 October 1892
• Citation: 16 S.E. 92,90 Ga. 441
• Parties: JOHNSON v. STATE.
• Court: Georgia Supreme Court

16 S.E. 92

90 Ga. 441

JOHNSON v. STATE.

Supreme Court of Georgia

October 8, 1892

Syllabus by the Court.

1. Although the statute (Code, § 4628) declares that every indictment shall be deemed sufficiently technical and correct which states the offense in the terms and language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury, an indictment charging that the accused, with force and arms, and arsenic poison and other poisons to the grand jurors unknown, but all being weapons likely to produce death, did unlawfully and with malice afore thought make an assault upon a named person with intent then and there to kill and murder him, is wanting in due certainty; and a special demurrer thereto, alleging in effect, that the indictment did not state how or in what manner the accused used the poison in the commission of the alleged offense, and that the facts were not set out in the indictment with sufficient particularity to enable the accused to make a defense, should have been sustained.

2. As the indictment should have been quashed on demurrer, all proceedings had thereon after overruling the demurrer were necessarily erroneous.

Error from superior court, Fulton county; R. H. CLARK, Judge.

Sarah Johnson was convicted of an assault with intent to kill, and brings error. Reversed.

J. C. Jenkins, for plaintiff in error.

C. D. Hill, Sol. Gen., and B. H. Hill, for the State.

LUMPKIN J.

The indictment was good in substance, and sufficiently full to withstand a general demurrer or to support a conviction as against a motion in arrest of judgment; but it was wanting in that degree of detail and definiteness which the accused had a right to demand before going to trial on the merits. Upon the assumption that she was guilty, it would, of course, be easy to perceive that she would know the precise manner in which she attempted by poison to take Mr. Romare's life but, on the assumption that she was innocent,--and this the law presumes,--it is equally easy to perceive that she is fairly and reasonably entitled to be informed as to the manner in which she "assaulted" Mr. Romare, or how she used the poison in endeavoring to murder him. Her objection, by special demurrer, that this indictment failed to afford her such information is not captious, but is fair and well founded. There can be little doubt, we apprehend, that at common law this indictment would not have been sufficient, and, if it can be sustained at all in this state, it must be done under the provisions of section 4628 of the Code. There are many decisions of this court citing and construing this section, and in several of them indictments have been sustained because of this section, which would otherwise have been regarded as fatally defective. In quite a number of these cases objections to the sufficiency of the indictment were not taken until after verdict, and there was no difficulty at all in holding that such objections were entitled to far less weight than they would have received if made before pleading to the merits. We have been unable to find any case in our own reports ruling squarely and distinctly that one accused of crime is not entitled to be informed with reasonable certainty of the substantial particulars of the charge against him, when the demand for such information is made before entering the general plea of not guilty. In Locke's Case, 3 Ga. 534, we find in an able and well-prepared opinion of Judge NISBET a very clear statement of what should be the rule applicable. On page 540 he uses this language: "The requirement of the statute is that the offense must be so plainly stated that the juryman may easily understand its nature. Our construction of this statute is that the indictment should leave nothing to inference or implication, but that its statements should be so plain that a common man may, without doubt or difficulty, from the language used, know what is the charge made against the accused." The statute referred to in the words above quoted was that relating to the offense of bastardy, but the rule is applicable to offenses of all kinds. In the case of Ash. v. State, 56 Ga. 583, it was held that the failure of an indictment for assault with intent to murder with a pocketknife to allege the use made of the weapon was not a good ground for arresting the judgment, but it was not held that this objection would not have been good on special demurrer before or upon arraignment. Again, in Rataree v. State, 62 Ga. 245, this court ruled that it was not good ground for arresting the judgment that an accusation in a city court, charging the accused with an assault, did not specify any act or acts constituting the same; but again this court refused to say that this objection would not have been good on special demurre...