Mealor v. State
| Decision Date | 05 September 1975 |
| Docket Number | No. 2,No. 50793,50793,2 |
| Citation | 135 Ga.App. 682,218 S.E.2d 683 |
| Parties | Jerry MEALOR v. The STATE |
| Court | Georgia Court of Appeals |
James L. Brooks, Commerce, for appellant.
Kenneth E. Goolsby, Dist. Atty., Dennis C. Sanders, Asst. Dist. Atty., Thomson, for appellee.
The defendant was tried and convicted on a five-count indictment charging (1) criminal attempt with intent to commit burglary, (2) possession of burglary tools, (3) carrying a concealed weapon, (4) carrying an unlicensed pistol, and (5) possessing a firearm during an attempt to commit a crime. The jury imposed sentences on the three felonies, counts 1, 2 and 5 and directed the sentences to be served consecutively. The judge imposed sentences on the misdemeanor counts-3 and 4, and ordered each sentence to run consecutively upon the completion of the sentence on the prior count, and in addition required 'all sentences imposed on the Defendant this date will be served consecutively to any sentences the Defendant is presently serving from any other Courts.' Defendant enumerates as error that count one-alleging criminal attempt, 'did not sufficiently specify a specific crime' and that if count one was fatally defective then there could be no conviction under count five-possessing a firearm during an attempt to commit a crime. Defendant also contests the imposition of sentences imposed in this case to run consecutively to a sentence in another court that he is presently serving because the jury did not recommend that the sentences under this indictment be served consecutively to the prior sentence. Defendant also enumerates as error the general grounds on counts one and five. Held:
1. One accused of crime has a right, if he demands it by timely demurrer, to have an accusation perfect in form and substance. Harris v. State, 37 Ga.App. 113, 138 S.E. 922. If the indictment is fatally defective, the sufficiency can be questioned by general demurrer. Woods v. State, 10 Ga.App. 476, 478, 73 S.E. 608. The defendant in this case did not demur. One who waives the right to be tried upon an indictment perfect in form and substance by failing to demur and takes his chances on an acquittal, will not be heard after conviction to urge defects in the indictment unless the defects are so great that the indictment is absolutely void. Tanner v. State, 90 Ga.App. 789, 790, 84 S.E.2d 600; Parham v. State, 112 Ga.App. 636, 637, 145 S.E.2d 726.
Every indictment or accusation shall be deemed sufficiently technical and correct which states the offense in the terms of the Code or so plainly that the nature of the offense charged may be easily understood by the jury. Code § 27-701. Count one conformed substantially to the essential elements of the offense enumerated in the Criminal Code of Georgia, § 26-1001 (Code Ann. § 26-1001; Ga.L.1968, pp. 1249, 1274). A fair reading of the count reveals that the jury should have had no difficulty in understanding the clear and unambiguous language. The indictment is sufficient to withstand a broadside charge at this level. If the defendant desires to contest the sufficiency of an indictment, he should invoke his rights at the appropriate time-prior to entry of the verdict. Davis v. State, 106 Ga.App. 133(1),126 S.E.2d 486.
2. As the enumeration of error regarding count five was based on the alleged defect in count one, there being no defect, there is no error as to count five.
3. We find no merit to the allegation of the general grounds of error as to counts one and five.
4. The defendant was serving a prior sentence adjudged in another court when sentenced by this court. As this trial was held prior to the effective date of the new criminal procedure authorizing sentencing by the judge for all offenses (Ga.L.1974, p. 352; Code Ann. § 27-2301), the jury returned sentences on the felony counts-1, 2 and 5 and recommended 'that all three sentences run consecutively.' The judge imposed sentence upon the remaining misdemeanor counts, 3 and 4, and provided that each sentence would 'be computed from the expiration of the sentence in' the preceding count. In addition, he provided for all sentences to be served 'consecutively to any sentences Defendant is presently serving from any other Courts.' Defendant contends it is error for sentences adjudged by this court to run consecutively to a sentence of another court if the jury did not so provide in their sentence.
Code Ann. § 27-2510 (Ga.L.1956, pp. 161, 168; (1964, p. 494)) provides that where an accused is convicted on more than one...
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Chappell v. State
...239 Ga. 483, 484, 238 S.E.2d 38. Any challenge to the indictment must be made prior to verdict or it is waived. Mealor v. State, 135 Ga.App. 682(1), 218 S.E.2d 683; Megar v. State, 144 Ga.App. 564(3), 241 S.E.2d 447. The record does not reveal any challenge to the indictment prior to verdic......
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Megar v. State
...failure to demur operates as a waiver of the right to be tried by an indictment perfect in form and substance. Mealor v. State, 135 Ga.App. 682, 683(1), 218 S.E.2d 683, 685. Furthermore, "Every indictment or accusation shall be deemed sufficiently technical and correct which states the offe......
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Rowles v. State, 54276
...the jury or is substantially in the language of the statute. Cragg v. State, 117 Ga.App. 133, 159 S.E.2d 717 (1968); Mealor v. State, 135 Ga.App. 682, 218 S.E.2d 683 (1975). See Parsons v. United States, (C.C.A.Ga.) 189 F.2d 252 (1951). Thus an accusation is sufficient if it charges the com......
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Chamlee v. State
...merit, and that challenges of this sort to an indictment must be made prior to the entry of the verdict. See Mealor v. State, 135 Ga.App. 682(1), 218 S.E.2d 683 (1975). Quite frankly, we do not foresee the need for appointment of counsel in many probation-revocation appeals. In most such ca......