Lee v. State, 33099

• Decision Date: 21 June 1950
• Docket Number: No. 2,No. 33099,33099,2
• Citation: 81 Ga.App. 829,60 S.E.2d 177
• Parties: LEE v. STATE
• Court: Georgia Court of Appeals

Page 177

60 S.E.2d 177

81 Ga.App. 829

LEE v. STATE.

No. 33099.

Court of Appeals of Georgia, Division No. 2.

June 21, 1950.

SYLLABUS BY THE COURT

1. If the phrase 'contrary to the laws of said State, the good order, peace and dignity thereof' is a necessary part

of an indictment at all, the requirement is met when the indictment consists of more than one count and, although the phrase does not appear at the conclusion of each count, it does appear at the conclusion of the indictment.

2. The verdict is authorized by the evidence and, since it has the approval of the trial court, it will not be disturbed by this court.

George Lee was indicted, tried and convicted in the Superior Court of Bulloch County 'for that the said accused George Lee of the County and State aforesaid on the 10th day of December, 1949, in the county aforesaid, unlawfully and with force of arms have, control and possess contraband whiskey, commonly called 'Moonshine'.

'And the grand jurors aforesaid, further charge and accuse the said George Lee with the offense of Misdemeanor for that the said George Lee in the County and State aforesaid on the 10th day of December, 1949, did then and there unlawfully have, control, and possess spirituous, alcoholic, and intoxicating liquors which did not bear the tax stamps required by Section 58-1056 of the Code of Georgia,

'contrary to the law of said States, the good order, peace and dignity thereof.'

The defendant demurred to the above indictment on the grounds (1) that it alleges two offenses in one count, and (2) that count one does not end with 'contrary to the laws of the State, the good order, peace and dignity thereof' as is mandatory. This demurrer was overruled. On the trial the jury was authorized to find facts substantially as follows: that two county policemen had searched the defendant's premises; that they had found several dozen empty half gallon jars in the shed room of the house; that they had found a half gallon jar of whisky of the same shape across the road from the defendant's house about 75 feet from it beside an old tobacco barn also on the defendant's premises, and two cases of whisky about 200 yards below his house in some gall berry bushes; that the defendant voluntarily stated at that time that he was selling the liquor for Tommie Morris and got very little for it, just enough to buy groceries with; that they also found in the house numerous pasteboard cartons of the same type as those found behind the home of Tommie Morris. The defendant denied making the statement or that he knew anything about the whisky. To the jury verdict finding him guilty he filed a motion for new trial on the general grounds, and the overruling of this motion is assigned as error.

Cohen Anderson, Statesboro, for plaintiff in error.

Walton Usher, Sol. Gen., Springfield, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. The indictment apparently represents an effort on the part of the State to charge one misdemeanor in two counts, stating the same offense in two different ways, and it is observed that in such a case only one punishment could legally be imposed, and that, the jury having found the defendant guilty on both counts, it would not matter so far as conviction or sentence is concerned if one count of the indictment were bad and the other good. This indictment is drawn in two counts, and the fact that such counts are not numbered does not effect the validity thereof. Wright v. State, 53 Ga.App. 371(1), 186 S.E. 149. The first ground of demurrer is without merit.

As to the second ground, it is observed that the indictment is drawn on a printed form, and that the words 'contrary to the laws of said state, the good order, peace and dignity thereof' known as the contra pacem clause, is imprinted following the second count and does not appear at the end of the first count. Code, § 27-701 which sets out the form in which indictments and accusations shall be drawn states that each shall be deemed sufficiently technical and correct which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury. This test is met. The code then provides that 'the form of every indictment or accusation shall be as follows', setting out the form ending with the contra pacem clause. It further provides the form of heading of each additional count when the indictment is in more than one count. It is also fundamental that where an indictment is in more than one count, each count must be complete within itself and plainly, fully and distinctly set out the crime alleged, although express reference from one count to another is allowable. Durden v. State, 152 Ga. 441(1-a), 110 S.E. 283; Perry v. State, 62 Ga.App. 115, 8 S.E.2d 425. There is no reference between counts here, but the offense is distinctly and fully stated. The defect is one of technical formality only, and the question arises as to whether such a technical defect, where attention is properly...