State v. Eubanks

Citation238 S.E.2d 38,239 Ga. 483
Decision Date07 September 1977
Docket NumberNo. 32349,32349
PartiesThe STATE v. Bobby EUBANKS.
CourtSupreme Court of Georgia

Ben J. Miller, Dist. Atty., Paschal A. English, Jr., Thomaston, for appellant.

Don E. Snow, Thomaston, for appellee.

HALL, Justice.

We granted certiorari to review a ruling of the Court of Appeals that Eubanks was entitled, following a special demurrer, to a perfect indictment; that an indictment which denominated one crime but charged another was imperfect; and that when the demurrer was overruled and Eubanks was subsequently convicted of the crime charged in the allegations of the indictment, he was entitled on appeal to a reversal on the conviction for this imperfection on the ground that subsequent proceedings were nugatory, without reference to whether any prejudice accrued to him through the pre-trial ruling.

We think that those cases stating a defendant's entitlement to a perfect indictment have no literal application to a post-conviction review; that an inconsistency between the denomination and the allegations in the indictment is an imperfection, but is one that is subject to a harmless error test on appeal; and that a defendant who was not at all misled to his prejudice by any imperfection in the indictment cannot obtain reversal of his conviction on this ground. Accordingly, we vacate the judgment of the Court of Appeals.

The facts of this case show that an indictment was returned against Eubanks naming the crime of which he was charged theft by deception (Code Ann. § 26-1803), but alleging acts which do not constitute that crime but theft by conversion (Code Ann. § 26-1808). His pre-trial demurrer on this ground was overruled after a hearing at which his attorney pointed out the error and the prosecutor conceded that the crime was wrongly named. He was tried and convicted of theft by conversion, and brought seven enumerations of error to the Court of Appeals, one of which urged error in overruling the demurrer. The Court of Appeals reversed, ruling that the demurrer was erroneously overruled and that all subsequent proceedings were nugatory. The Court of Appeals thus did not reach the remaining enumerations of error.

Generally, the principle is well established in Georgia that "It is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the state. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment. (Citation)." Lipham v. State, 125 Ga. 52, 53, 53 S.E. 817 (1906). Accord, State v. Edwards, 236 Ga. 104, 107, 222 S.E.2d 385 (1976); Turner v. State, 233 Ga. 538, 212 S.E.2d 370 (1975); Marter v. State, 224 Ga. 569, 163 S.E.2d 702 (1968). This rule is applied in many jurisdictions. See Annot., Error in Naming Offense, etc., 121 A.L.R. 1088 (1939). It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy. Byers v. State, 236 Ga. 599, 600, 225 S.E.2d 26 (1976); Dobbs v. State, 235 Ga. 800, 801-802, 221 S.E.2d 576 (1976).

The Court of Appeals in reversing the conviction was persuaded by the language of Harris v. State, 58 Ga. 332 (1876); Kyler v. State, 94 Ga.App. 321, 94 S.E.2d 429 (1956) and Hamby v. State, 76 Ga.App. 549, 46 S.E.2d 615 (1948), all of which recite that an accused is entitled to an indictment perfect in form as well as substance if he raises the question on special demurrer. It is certainly true, as an abstract matter, that an indictment which names one crime but alleges acts constituting another can hardly be called perfect. There would seem to be a conflict between the general principle that erroneous naming makes no difference, and the principle that accused is entitled to a "perfect" indictment in response to his special demurrer. We must inquire what these "perfect indictment" cases really mean, and whether there is anything about a special demurrer which would obviate application of a harmless error test.

A look at the history of demurrers to indictments in Georgia, beginning long before our current Appellate Practice Act, shows that we must distinguish challenges raised to indictments before and after trial.

A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.

"The 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. Woods, 10 Ga.App. 476, 478, 73 S.E. 608. * * * Exceptions which go to the form of an indictment must be made by special demurrer or motion to quash. (Citations)." Molnar, Georgia Criminal Law, p. 68 (1935).

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. Ponder v. State, 121 Ga.App. 788, 175 S.E.2d 55 (1970). See Durden v. State, 152 Ga. 441, 444, 110 S.E. 283 (1922). Such a motion in arrest asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of the crime. Ponder v. State,supra. In contrast, a special demurrer is waived if not raised before pleading to the merits of the indictment. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580; Jordan v. State, 22 Ga. 545, 556 (1857); Birt v. State,127 Ga.App. 532, 534, 194 S.E.2d 335 (1972); Robertson v. State, 127 Ga.App. 6, 192 S.E.2d 502 (1972); Jackson v. State, 112 Ga.App. 834(1b),146 S.E.2d 541 (1965); Chambers v. State, 22 Ga.App. 748, 753, 97 S.E. 256 (1918); Molnar, Georgia Criminal Law 69 (1935). See Code Ann. §§ 27-1501; 27-1601. If it is overruled, according to the old procedural law, the objection must be preserved by special exception preserved pendente lite, or must be presented in a bill of exceptions certified within 20 days; it is not grounds for a new trial. Long v. State, 118 Ga. 319, 45 S.E. 416 (1903); Wise v. State, 24 Ga. 31, 38 (1857); Wheeler v. State, 4 Ga.App. 325, 61 S.E. 409 (1908).

Under the new Appellate Practice Act, bills of exception and exceptions pendent lite are abolished. Code Ann. §§ 6-801, 904, 905. Objections to overruling a special demurrer can now be reviewed by the appellate court before trial under the provisions of Code § 6-701(a) 2(A), or after conviction.

The foregoing principles show that the erroneous overruling of a general demurrer may be insisted upon after trial, and can result in reversing a conviction. E. g., Day v. State, 79 Ga.App. 662, 54 S.E.2d 668 (1949). However, if no special demurrer is made, the ground is waived. If it is made and overruled and no subsequent issue is made (formerly, if there were no exceptions), the ground is waived. If it is made, overruled, preserved, and after verdict the overruling is determined to be error, there are two lines of cases in Georgia dictating opposite results. One line says all subsequent proceedings, including the trial and verdict, are nugatory and the error cannot be harmless. The opposite line of cases applies the harmless error doctrine where no prejudice has accrued to defendant.

Looking first at the cases stating that an erroneous overruling renders nugatory subsequent proceedings, we find from this court, for example, in Wise v. State, 24 Ga. 31, 38 (1857) a statement in dicta that the illegal overruling of an exception requires a new trial; but it is not entirely clear whether the court referred hypothetically to a general or special demurrer, as the indictment was upheld. In Henderson v. State, 113 Ga. 1148, 39 S.E. 446 (1901) this court ruled that an indictment contained a defect which was subject to special demurrer, and the trial judge erred in not quashing it. However, it appears that all these proceedings occurred pre-trial, and did not involve the reversal of a conviction.

The first example we find of a reversal by this court of a conviction on the ground of an erroneous overruling of a mere special demurrer is Haley v. State, 124 Ga. 216, 52 S.E. 159 (1905). In a headnote decision, the court ruled that the alternative statement of the charges in the indictment made it subject to special demurrer and the conviction was reversed for its erroneous overruling. The court did not differentiate its ruling from those which came pre-trial, nor did it discuss the question of prejudice to defendant, though the facts strongly indicate that no such prejudice occurred. It is instructive that Haley has subsequently been cited by this court only twice, in Garmon v. State, 219 Ga. 575, 580, 134 S.E.2d 796 (1964), and Pulliam v. Donaldson, 140 Ga. 864, 865, 80 S.E. 315 (1913), neither of which involved the instant issue.

Two subsequent cases, McDonald v. State, 152 Ga. 223, 109 S.E. 656 (1921) and Gilbert v. State, 175 Ga. 276, 165 S.E. 120 (1932) reversed convictions for errors in indictments which were earlier demurred to, but neither characterized the demurrer as general or special. The McDonald case concerned counts based on an unconstitutional statute, and the Gilbert case concerned the improper joinder of offenses. In both, the prejudice to defendant seems patent.

One of the most significant cases in this vein from the Court of Appeals is Isom v. State, 71 Ga.App. 803, 32 S.E.2d 437 (1944) in which the court specifically ruled that in light of the Haley case it was precluded from...

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