McDaniel v. State

Citation298 Ga. App. 558,680 S.E.2d 593
Decision Date25 June 2009
Docket NumberNo. A09A0654.,A09A0654.
PartiesMcDANIEL v. The STATE.
CourtGeorgia Court of Appeals

Jackie G. Patterson, Atlanta, for appellant.

Scott L. Ballard, Dist. Atty., Robert W. Smith, Jr., Asst. Dist. Atty., for appellee.

BARNES, Judge.

Christopher McDaniel appeals his conviction for aggravated assault and possession of a firearm during the commission of a crime. He contends the trial court erred by denying his motion in arrest of judgment to both crimes because the indictment failed to allege any of the elements of the offenses. He relies upon OCGA § 17-9-61(a): "When a judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings." McDaniel alleges that the aggravated assault charge against him only alleged that he "did unlawfully make an assault upon the person of [the victim], a non-sibling living in the same household, by shooting said victim," and did not specify what means or object he used to shoot the victim. Therefore, he contends that his convictions should be reversed because he could admit the charge as made and still be innocent. We disagree, and affirm McDaniel's convictions.

The record shows that McDaniel made no pretrial motion about the wording of the indictment or any demurrer, special or general. Further, the defense raised no issue before trial about the wording of the indictment, and did not assert that the wording of the indictment affected its trial preparation. After McDaniel was convicted, however, he filed a motion for new trial and a motion in arrest of judgment challenging the wording of the indictment and asserting that he could admit the matters alleged and still be innocent. The trial court denied the motions.

The entire statement of the charge in the indictment states the following:

In the name and behalf of the citizens of Georgia, [the grand jurors] charge and accuse CHRISTOPHER MCDANIEL with the offense of AGGRAVATED ASSAULT ... in the County and State aforesaid, on the 17TH day of JUNE, Two Thousand Seven, did unlawfully make an assault upon the person of [the victim], a non-sibling living in the same household, by shooting said victim, contrary to the laws of said State, the good order, peace and dignity thereof.

"The purpose of an indictment is to enable the defendant to prepare his defense intelligently and to protect him from double jeopardy." (Footnote omitted.) State v. Barnett, 268 Ga.App. 900(1), 602 S.E.2d 899 (2004). An indictment is technically correct and sufficient if it states the offense in the terms and language of the Code or in language so plain that jurors understand the nature of the charged offense. OCGA § 17-7-54(a). Under our law,

[t]he true test of the sufficiency of an indictment to withstand a general demurrer, or a motion to quash, is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. If the indictment is fatally defective, the sufficiency of the indictment can be questioned by general demurrer or by motion in arrest of judgment. Exceptions which go to the form of an indictment must be made by special demurrer or motion to quash. In line with the fact that a general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment even if there was no earlier objection. Such a motion in arrest asserts that the...

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11 cases
  • State v. Wilson
    • United States
    • Georgia Court of Appeals
    • October 19, 2012
    ...facts that constitute the charged crime or any other crime, including a lesser included offense of the charged crime. McDaniel v. State, 298 Ga.App. 558, 559–560, 680 S.E.2d 593 (2009); see OCGA § 16–1–6; Morris v. State, 310 Ga.App. at 129(2), 310 Ga.App. 126. Thus, “[t]he true test of the......
  • Premier Paving GP, Inc. v. IOU Cent., Inc.
    • United States
    • Georgia Court of Appeals
    • December 9, 2020
  • Poole v. State
    • United States
    • Georgia Court of Appeals
    • March 14, 2014
    ...by a motion in arrest of judgment. Harris v. State, 258 Ga.App. 669, 670–671(1), 574 S.E.2d 871 (2002). See McDaniel v. State, 298 Ga.App. 558, 559–560, 680 S.E.2d 593 (2009). Consequently, by failing to timely file a special demurrer, Poole waived his right to seek greater specificity in t......
  • Tisdale v. State
    • United States
    • Georgia Court of Appeals
    • March 12, 2020
    ...It follows that the trial court did not err in denying Tisdale's motion in arrest of judgment. See generally McDaniel v. State , 298 Ga. App. 558, 559-560, 680 S.E.2d 593 (2009). 3. Tisdale asserts that the trial court committed plain error by instructing the jury that it was not required t......
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