Lanier v. State

• Decision Date: 27 January 1909
• Docket Number: 1,582.
• Citation: 63 S.E. 536,5 Ga.App. 472
• Parties: LANIER v. STATE.
• Court: Georgia Court of Appeals

63 S.E. 536

5 Ga.App. 472

LANIER v. STATE.

No. 1,582.

Court of Appeals of Georgia

January 27, 1909

Syllabus by the Court.

An accusation charging the offense of stabbing, which fails to allege that the stabbing was not done in self-defense or under other circumstances of justification, is demurrable but this defect may be waived, and if the defect is waived by failure to demur, the omission to negative the exception provided in cases of self-defenses or other justification is not ground for arresting the judgment after conviction, where the accusation alleges that the stabbing and cutting was "contrary to the laws of said state, the good order peace and dignity thereof."

[Ed Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2445-2462; Dec. Dig. § 970. ^[*]]

Every defendant has the right to be tried upon an indictment or accusation perfect in form and substance, but this right like every other (even the right of trial itself), may be waived. One who waives his right to be tried upon an indictment perfect in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless those defects are so great that the accusation is absolutely void.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 640-650; Dec. Dig. § 202. ^[*]]

Error from City Court of Statesboro; J. F. Brannen, Judge.

William Lanier was convicted of stabbing, and he brings error. Affirmed.

Strange & Cobb, for plaintiff in error.

Fred T. Lanier, Sol., for the State.

RUSSELL J.

Lanier was tried upon an accusation charging him with the offense of stabbing, "for that the said William Lanier, in the county aforesaid, on the 29th day of August, in the year 1908, unlawfully and with force and arms did then and there cut and stab one Leroy Jackson with a certain knife, contrary to the laws of said state, the good order, peace, and dignity thereof." The defendant in the court below joined issue upon this accusation, and was found guilty. He thereupon moved in arrest of judgment upon the ground that the accusation upon which the verdict of guilty was rendered fails to set forth any crime or misdemeanor under the laws of the state of Georgia, and is fatally defective, in that it does not set forth that the stabbing charged therein was "not done in his own defense or other circumstances of justification." The trial judge overruled the motion in arrest of judgment, and the defendant excepts to this ruling.

There can be no question that the accusation should have been quashed if the point now presented had been raised by a demurrer presented before the issue was joined, because it is well settled that all exceptions and provisos in criminal statutes must be negatived before the defendant is properly charged with an offense as to which exceptions are provided. It is equally well settled that objections which go merely to the form of the indictment must be raised by demurrer; otherwise, such defects are to be considered as waived. The defendant in the present case waived any exceptions to the form of the indictment, "and, as no motion in arrest of judgment should be sustained for any matter not affecting the real merits of the offense charged in the indictment," the single question presented is whether the omission from the accusation of an averment negativing the exception by which one is permitted to stab in self-defense or under other circumstances of justification rendered the indictment so fatally defective that it failed to charge a violation of the law. In other words, is the accusation so defective that no judgment can be entered upon the verdict finding the defendant guilty? As stated above and as held in Isom v. State, 83 Ga. 378, 9 S.E. 1051, the indictment should have been a negative exception. The question therefore rises as to whether the indictment is sufficient, in view of the defendant's waiver of formal defects, to charge an unlawful stabbing. In our opinion the motion in arrest of judgment was properly overruled. While, under the strict rules of pleading, the exception in behalf of the plaintiff in error should have been negatived, the averment that the stabbing was contrary to the laws of said state, the good order, peace and dignity thereof, sufficiently set forth the offense when the defendant consented to waive his right to demur. The exception is a matter of defense, and not one of the essential elements of the crime referred to in Hunter v. State, 4 Ga.App. 580, 61 S.E. 1130. While the defendant in the court below had the right to have the indictment perfect in form as well as substance, and had the right to require the state to aver that the cutting was not done in his own defense or under other circumstances of justification, the fact that he waived this right does not affect the merits of the accusation when it is considered upon the motion in arrest of judgment, unless the accusation, regardless of his waiver, fails to charge a crime. We think it can hardly be said that one would not be guilty of stabbing where it is admitted that the stabbing was done unlawfully and contrary to the laws of said state, the good order, peace and dignity thereof, because these statements alone, if the explicit negativing of the exceptions is not insisted upon, show that the cutting was not done in self-defense or under any circumstances of justification provided by the Code.

We are aware that the Supreme Court has held in Hardin v State, 106 Ga. 388, 32 S.E. 365, 71 Am.St.Rep. 269, that the mere use of the word "unlawful" in describing an act alleged to be criminal is insufficient to set out the offense of selling liquors unlawfully. But...