Lewis v. State

• Decision Date: 06 May 1937
• Docket Number: 26030.
• Citation: 191 S.E. 278,55 Ga.App. 743
• Parties: LEWIS v. STATE.
• Court: Georgia Court of Appeals

191 S.E. 278

55 Ga.App. 743

LEWIS v. STATE.

No. 26030.

Court of Appeals of Georgia, First Division

May 6, 1937

Syllabus by the Court.

1. "The right of formal arraignment and plea will be conclusively considered as waived, where the defendant goes to trial before the jury on the merits, and fails, until after verdict, to bring to the attention of the court that he had not been formally called upon to enter a plea to the indictment." Waller v. State, 2 Ga.App. 636(1) 58 S.E. 1106.

2. After verdict and judgment the indictment alleging an impossible day, or a day after the bill was found true, is held good. It would be otherwise if it were excepted to in time on special demurrer in writing. Harris v State, 58 Ga. 332, 333; Newsome v. State, 2 Ga.App. 392, 394, 58 S.E. 672.

3. The indictment in this case being otherwise good, the clerical error of writing inadvertently the word "accused" for the word "prosecutor" does not vitiate it. The word which is changed does not so obscure the sense that a juror or person of ordinary intelligence cannot with certainty ascertain the meaning, and a defendant will not be permitted, after verdict, to take advantage of this mere clerical error which is corrected by the necessary intendment of the indictment. 1 Wharton on Criminal Procedure (10th Ed.) p. 362, § 322; Code, § 27-701.

4. The defendant did not demur to the indictment but waited until after verdict before attacking it. After verdict every presumption and inference is in favor of the verdict, and hence the pleading must be construed most strongly in favor of the pleader (the State). The attack on the indictment in that it "charged no crime against the defendant" is not meritorious, when made by way of a motion in "arrest of verdict and judgment."

Error from Superior Court, Berrien County; W. R. Smith, Judge.

Culpepper Lewis was convicted of cheating and swindling, and he brings error.

Affirmed.

L. J Courson and E. R. Smith, both of Nashville, for plaintiff in error.

H. C Morgan, Sol. Gen., of Homerville, and M. S. Potter, of Nashville, for the State.

MacINTYRE Judge.

The indictment charged the defendant, Culpepper Lewis, with cheating and swindling, "for that the said accused on 4, day of Sept. in the year of our Lord Nineteen Hundred and 36, in the County aforesaid, did * * * wilfully and knowingly, with intent to defraud one Dan C. Paulk by deceitful means and artful practices, falsely and fraudulently represent to said Dan C. Paulk that he, the said accused had a good and merchantable title to (certain described tract of land) * * *, and did thereby induce the said Dan C. Paulk to purchase by deed to secure a debt of $200 said described land-said debt being a loan of $200 then and there advanced to said accused, and said deed was to secure said loan, when in fact and truth said accused did not own said land as represented, but was owned by Mrs. Culpepper Lewis; thereby defrauding and cheating the said accused [prosecutor] out of the sum of $200 and interest thereon at 8% per annum. The said Dan C. Paulk did not know that said property was not owned by said accused until more than 6 months after said transaction, contrary to the laws of said State, the good order, peace and dignity thereof." (Italics ours.) The indictment was filed September 23, 1936.

A jury found the defendant guilty. He filed the following motion "Comes now the defendant in the above-stated case, and files this his motion in arrest of the sentence and judgment of the court in said cause, and shows: (1) It appears from the record in said case that no valid and sufficient indictment has been returned, or is of file against the defendant, and charges no crime against the defendant. (2) The indictment nowhere therein alleges that the defendant cheated and swindled the prosecutor or any one else out of any sum of money, because the only reference in the bill of indictment to the alleged charge of cheating and swindling is as follows: 'Thereby defrauding and cheating the said accused out of the sum of $200 and interest thereon at 8% per annum.' (Italics ours.) (3) Because it is an essential element of the charge of cheating and swindling that the indictment alleges that the accused has cheated and swindled the prosecutor or some one else besides himself out of something of value, which necessary and essential element is not contained in said bill of indictment. (4) Said sentence and judgment of the court should be arrested because it is alleged in said indictment that the alleged crime was committed on September 4th, 1936, and that the prosecutor, Dan C. Paulk, did not know that the property in question was not owned by said accused...