State v. Stamey, A93A2181
| Decision Date | 04 February 1994 |
| Docket Number | No. A93A2181,A93A2181 |
| Citation | 211 Ga.App. 837,440 S.E.2d 725 |
| Parties | The STATE v. STAMEY et al. |
| Court | Georgia Court of Appeals |
Lydia Sartain, Dist. Atty., Lee Darragh, Asst. Dist. Atty., for appellant.
Troy R. Millikan, Gainesville, for appellees.
An indictment was returned against Alan and Donna Stamey charging them with theft by taking based on allegations that "between January 2, 1991, and January 10, 1992" they "did unlawfully being in lawful possession of property, to-wit: lawful U.S. Currency, the property of Dr. Jack Winner, appropriate said property, with the intention of depriving said owner of said property, the value of said property exceeding $500.00."
Defendants filed a motion to quash the indictment on grounds that it is defective because of vague and uncertain allegations and an insufficient description of the offense.
The court quashed the indictment for its failure to specifically identify the form of currency taken, the amount taken, when it was taken, and whether the alleged offense arises out of a series of thefts or a single occurrence. The court directed the State, upon re-indicting defendants, to provide as much specificity as possible in stating dates and amounts allegedly taken in order to enable defendants to prepare a defense.
1. The court did not err in finding the indictment defective for failing to specifically identify the date of the alleged offense (if it arises out of a single occurrence) or the dates (if it arises out of a series of thefts).
In Lyles v. State, 215 Ga. 229, 231(1), 109 S.E.2d 785 (1959), the court stated that "An indictment which charges the commission of an offense in a certain year, without naming either the day or month upon which it was committed, is defective, and upon special demurrer thereto before arraignment, should be quashed." Braddy v. State, 102 Ga. 568, 27 S.E. 670 (1897).
In Hutton v. State, 192 Ga.App. 239, 241(4), 384 S.E.2d 446 (1989), this court in effect recognized an exception to the above rule, where in a child molestation case it was alleged in the indictment that the offenses charged occurred between two specified dates, " 'the exact dates being unknown to the Grand Jurors.' " The reason is that "[t]he state cannot be more specific than the evidence permits." Keri v. State, 179 Ga.App. 664, 668(4), 347 S.E.2d 236 (1986).
The indictment in this case does not allege, and the State does not argue, that the exact date or dates were unknown to the grand jurors. The State argues that the indictment need not be date-specific, in that where the exact date of the commission of the offense is not stated as a material allegation, it may be proved as of any time within the statute of limitation (although defendant is entitled to sufficient time to prepare his defense if he is surprised and prejudiced by a newly alleged date). Hutton, supra; see also Pittman v. State, 179 Ga.App. 760(1), 348 S.E.2d 107 (1986) (). Nonetheless, " " Dotson v. State, 160 Ga.App. 898, 899(2), 288 S.E.2d 608 (1982).
On the ground that the indictment in this case states the offense in the language of the theft-by-taking statute (OCGA § 16-8-2), the State also relies upon OCGA § 17-7-54(a): "Every indictment of the grand jury which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct." However, this section also states, with respect to the form of the indictment, that it shall state the offense and the time of committing the same with "sufficient certainty." The part relied upon by the State Pharr v. State, 44 Ga.App. 363, 364, 161...
To continue reading
Request your trial
-
Miller v. State
...[Cits.]" Grantham, supra at 444(1), 160 S.E.2d 676; accordPittman, supra at 760, 348 S.E.2d 107. See also State v. Stamey, 211 Ga.App. 837, 838(1), 440 S.E.2d 725 (1994); Nolton v. State, 196 Ga.App. 690, 691(1), 396 S.E.2d 605 (1990); Garrett v. State, 188 Ga.App. 176, 177(2), 372 S.E.2d 5......
-
Demetrios v. State, A00A1766.
...and punctuation omitted.) Davidson v. State, 231 Ga.App. 605, 608, 499 S.E.2d 697 (1998). 22. Id. at 608, 499 S.E.2d 697. 23. 211 Ga.App. 837, 440 S.E.2d 725 (1994), overruled on other grounds, State v. Forthe, 237 Ga.App. 134, 514 S.E.2d 890 (1999). 24. Johnson v. State, 233 Ga.App. 450, 4......
- Warren v. State
-
State v. Forthe
...amount of money taken with regard to each count. The trial court relied on this Court's decision in Division 2 of State v. Stamey, 211 Ga.App. 837, 839(2), 440 S.E.2d 725 (1994), to grant the defendant's demurrer on the grounds that the State failed to allege in the indictment the specific ......