Staples v. State

• Decision Date: 12 April 1991
• Docket Number: No. A91A0144,A91A0144
• Parties: STAPLES v. The STATE.
• Court: Georgia Court of Appeals

Page 551

405 S.E.2d 551

199 Ga.App. 551

STAPLES v. The STATE.

No. A91A0144.

Court of Appeals of Georgia.

April 12, 1991.

Michael S. Waldrop, for appellant.

Robert F. Mumford, Dist. Atty., Nancy F. Nash, Asst. Dist. Atty., for appellee.

ANDREWS, Judge.

Staples was indicted for two counts of aggravated assault and found guilty on the second count at trial. Although he did not demur to the indictment, after the verdict was returned Staples filed a motion to arrest judgment on the basis that the indictment was imperfect and incomplete. From the trial court's denial of that motion, he now appeals.

In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict. King v. State, 103 Ga.App. 272, 119 S.E.2d 77 (1961). By failing to file a demurrer before trial, Staples waived his right to a perfect indictment. State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Hubbard v. State, 129 Ga.App. 793, 201 S.E.2d 337 (1973). Therefore, a motion to arrest judgment should be granted only if the indictment is absolutely void. See Moore v. State, 94 Ga.App. 210, 94 S.E.2d 80 (1956).

Here, the allegedly deficient count for aggravated assault charged Staples "with having committed the offense of Aggravated Assault for that the said accused person in the County aforesaid, on the 26th day of August, 1989 unlawfully with a deadly weapon, to-wit: a .35 Caliber rifle, the same being a deadly weapon when used in the manner in which it was used to shoot the said victim, contrary to the laws of said State, the good order, peace and dignity thereof, ..."

Staples contends that the indictment is fatally defective because the second count omitted the victim's name and failed to set forth all the elements of the crime. Although the count is not a model of clarity, it is sufficient to withstand the motion to arrest judgment.

The two requirements of an indictment are that it definitively inform the accused of the charges against him, so that he may present his defense and avoid surprises at trial, and that it protect the accused against another prosecution for the same offense. Berger v. United States, 295 U.S. 78, 82, 55 S.Ct. 629, 630, 79 L.Ed. 1314 (1935); Ingram v. State, 137 Ga.App 412, 415, 224 S.E.2d 527 (1976); Williams v. State, 165 Ga.App. 69, 299 S.E.2d 402 (1983). Both requirements were met here. Although the victim is not named in this count, her identity is clear from the prior count. ¹ See Weddington v. State, 191 Ga.App. 738, 739, 382 S.E.2d 661 (1989). Although the second count is worded awkwardly, it plainly charges Staples with aggravated assault for shooting the victim with a deadly weapon. See Miller v. State, 182 Ga.App. 700, 701, 356 S.E.2d 900 (1987).

The test of the sufficiency of an indictment is whether the accused could admit all of the accusations and still be innocent of having committed the offense charged; if so, the indictment is defective. Mahomet v. State, 151 Ga.App. 462, 260 S.E.2d 363 (1979) ²; Brooks v. State, 141 Ga.App. 725, 234 S.E.2d 541 (1977). Here, Staples cannot admit to an aggravated assault using a .35 caliber rifle to shoot a victim and still be innocent of the offense charged.

The instant count adequately charges a violation of the law and sufficiently apprised Staples of the offense charged. Watson v. State, 190 Ga.App. 671, 379 S.E.2d 811 (1989). Since there was no fatal defect in the indictment, the denial of Staple's motion to arrest judgment was proper.

Judgment affirmed.

SOGNIER, C.J., and McMURRAY, P.J., concur.

1 Although each count must be complete within itself and contain every allegation essential...