Lastinger v. State, 33725
| Decision Date | 23 October 1951 |
| Docket Number | No. 2,No. 33725,33725,2 |
| Citation | 67 S.E.2d 411,84 Ga.App. 760 |
| Parties | LASTINGER v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
1. A motion to quash or dismiss an indictment is no more than a demurrer, and is not a proper method for attaching the indictment for any defect not appearing on the face thereof.
2. The confession of the defendant was sufficiently corroborated by his presence at the place where the crime was being committed and by proof of the corpus delicti. The verdict was therefore supported by some evidence, and since it has the approval of the trial court, no error of law appearing, it will not be disturbed by this court.
Harvey Lastinger was jointly indicted with another defendant, Albert Shuman, at the July, 1950, term fo Bulloch Superior Court for the offense of manufacturing whisky. It appears that these defendants, with another, had been jointly indicted for the same offense at the January, 1950, term of court; that one of the codefendants had been convicted under the original indictment and, on appeal, the conviction had been reversed on the ground that the indictment was fatally defective. See Shuman v. State, 82 Ga.App. 130, 60 S.E.2d 521. The case on appeal here is based upon the indictment returned at the July term of court. Before trial the defendant made a written motion to dismiss the same on the ground that the court had no jurisdiction of the case, and this motion was overruled.
Upon the trial the evidence, construed most favorably to support the verdict, was in effect that on November 25, 1949, certain police officers raided a still in Bulloch County and found a fire going under it and moonshine whisky running out of it at the time. The defendant, Albert Shuman, and Albert Smith were present at the still and were taken in custody. Two police officers testified that within a day or two the defendant came into their office to make bond and stated at that time that 'There wasn't but one thing, I was there helping to make whisky but it wasn't my still, it was Albert Shuman's still.' They further stated that this confession was freely and voluntarily made. The defendant denied making any confession and contended that he had merely told the officers he was there, and that he went there for the purpose of getting his brace and bit, but that he was not making whisky.
Error is assigned on the rulings of the trial court overruling the motion to dismiss the indictment and overruling the motion for a new trial on the general grounds.
W. G. Neville, Statesboro, for plaintiff in error.
Walton Usher, Sol. Gen., Springfield, for defendant in error.
TOWNSEND, Judge (after stating the foregoing facts.)
1. The motion to quash or dismiss the indictment contends that since the defendant had been previously indicted with the same codefendant for the same offense, and since the codefendant had been convicted and that conviction reversed by the Court of Appeals, but before the judgment of the Court of Appeals was made the judgment of the trial court, the defendant was again indicted at a time when it is contended the trial court had no jurisdiction of the case. This contention is without merit for two reasons. First, it is not contended that the indictment upon which the defendant was tried was defective upon its face. A motion to quash being merely a demurrer is not a proper method of attacking an indictment for a defect not appearing upon its face. See Tate v. State, 24 Ga.App. 279, 100 S.E. 765; Owens v. State, 54 Ga.App. 417, 187 S.E. 890. Had the position of the plaintiff in error been tenable, it could properly have been raised only by a plea...
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...401, 47 L.R.A.,N.S., 206; United States v. Strewl, 2 Cir., 99 F.2d 474; State v. Janiec, 20 N.J.Super. 471, 90 A.2d 98; Lastinger v. State, 84 Ga.App. 760, 67 S.E.2d 411. Assignment of error No. 3 is as 'The Court erred in granting, over appellant's objections, the State's request that the ......
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