Rehearing
Denied April 15, 1931.
Syllabus by Editorial Staff.
Indictment
for bribery held not demurrable for not alleging how
official behavior of defendant was influenced and what
official act was to be performed (Pen. Code 1910, § 954).
Indictment
for bribery held not defective as regards statute of
limitations for failure to allege to whom offense was unknown
until after certain date (Pen. Code 1895, § 30).
Member
of general council of city of Atlanta may be prosecuted for
bribery under the bribery statute.
Indictment
for bribery by member of Atlanta general council
held not demurrable for failure to allege that
matter pending before general council was within
council's jurisdiction, or lawfully before council.
Refusal
to direct verdict held not ground for new trial.
Where
judge in general charge instructed on circumstantial
evidence, failure to repeat instruction in portion of charge
specially referring to first count in indictment did not
require new trial.
Exclusion
of portion of witness' testimony held not ground
for new trial, where substantially same evidence in another
part of testimony was admitted.
Testimony
by person charged to have bribed defendant, that check was
given as loan, not as bribe, though uncontradicted, could be
disregarded by jury.
Variance
between indictment for bribery charging councilman with
receiving $100 in money, and proof showing he received
checks, signed by wife of person giving money, which were
cashed, for $100, held not fatal.
Failure
to charge on defense raised solely by defendant's
statement is not error, in absence of timely written request.
Ground
for new trial requiring reference to brief of evidence
held insufficient.
Error
from Superior Court, Fulton County; Virlyn B. Moore, Judge.
W. E
Saunders was convicted for bribery, and he brings error.
Affirmed.
BROYLES
C.J.
1. The
defendant, amember of the general council of the city of
Atlanta, was convicted of the offense of bribery. He was
tried on an indictment containing four counts, and was
convicted on counts 1, 2, and 3, and acquitted on count 4. He
demurred specially to each count, and the demurrer was
overruled. The defendant having been acquitted on the fourth
count, the demurrer as to that count will not be considered.
The demurrer to the other counts contained the following
grounds:
"1st.
That the indictment fails to set out in what respect the
official behavior of said accused was to be influenced by
the payment of the money alleged to have been given him,
and what official act was to be performed or not to be
performed by him as a result of the payment of said sum.
"2d.
Defendant especially demurs to count 2 of the indictment,
because: (a) That the indictment fails to set out in what
respect the official bahavior of said accused was to be
influenced by the payment of the money alleged to have been
given him, and what official act was to be performed or not
to be performed by him as a result of the payment of said
sum. (b) Because said indictment fails to allege to whom
said offense was unknown until after the date of December
1, 1929.
"3d.
Defendant demurs especially to count 3, because: (a) That
the indictment fails to set out in what respect the
official behavior of said accused was to be influenced by
the payment of the money alleged to have been given him,
and what official act was to be performed or not to be
performed by him as a result of the payment of said sum.
(b) Because said indictment fails to allege to whom said
offense was unknown until after the date of December 1,
1929.
"5th.
Defendant demurs especially to each and every count,
because said indictment charges defendant as being a member
of General Council of the City of Atlanta, a municipal
corporation, and having received a bribe as such, and
because said indictment fails to allege that said Saunders
is a member of the General Assembly or officer of this
State, subject to the offense of bribery.
"6th.
Defendant demurs to each and every count of said
indictment, because said indictment fails to allege that
the matter depending before theGeneral Council in said
count was a matter over which said General Council had
jurisdiction, or that such matter was lawfully depending
before said body.
"7th.
Defendant demurs to each and every count in the indictment
because the acts charged against the defendant are not set
out with sufficient particularity to enable him to make a
defense thereto."
(a)
Grounds 1, 2(a), 3(a), and 7 all allege that the
indictment, in its several counts, fails to set forth with
sufficient particularity the offense charged. There is no
merit in these grounds. "The law does not require that
the evidence should be set out in the indictment, but only
that the offense should be charged in the terms and
language of the Code, or so plainly that the nature of the
offense can be easily understood by the jury."
Dowda v. State, 74 Ga. 12 (2); Penal Code (1910),
§ 954. See, in this connection, Dean v. State, 9
Ga.App. 303 (1), 305, 71 S.E. 597, where the charges
in the indictment were not set forth with as much
particularity as in the indictment in the instant case, and
yet the indictment was held not subject to a special
demurrer calling for greater particularity. In addition,
see Payne v. State, 29 Ga.App. 156 (2), 114 S.E.
226; Cook v. State, 22 Ga.App. 770 (1), 773, 774,
97 S.E. 264.
(b)
Grounds 2(b) and 3(b) allege that the indictment is
defective because it "fails to allege to whom said
offense was unknown until after the date of December 1,
1929." There is no merit in these grounds of the
demurrer. "The particular facts which constitute
exceptions to the bar of the statute of limitations need
not be minutely alleged in the bill of indictment. It is
sufficient if any
of the exceptions stated in section 30, Pen. Code 1895, be
stated in the language therein employed. As to such
exceptions, the state is only required to show a prima facie
case, as this is not matter essential to the actual guilt or
innocence of the accused." Cohen v. State, 2
Ga.App. 689 (1), 59 S.E. 4.
(c)
There is no...
