State v. Williams, 36848
| Decision Date | 25 February 1981 |
| Docket Number | No. 36848,36848 |
| Parties | STATE of Georgia v. Barbara Jean WILLIAMS. |
| Court | Georgia Supreme Court |
W. Don Thompson, Dist. Atty., Thomas J. Matthews, Asst. Dist. Atty., Macon, for the State.
Fred M. Hasty, Phil Brown, Brown, Katz, Flatau & Hasty, Macon, for Barbara Jean Williams.
The Bibb County Grand Jury returned an indictment against the appellee-defendant, Barbara Jean Williams, on October 30, 1979. Count four of the indictment charged the offense of murder and alleged the following facts in support thereof: On or about March 11, 1979, the defendant made an assault upon Dennis Daniels with malice aforethought in that she turned off a cardiac monitor warning device attached to the victim so that the device was rendered incapable of giving warning of dangerous irregular heartbeats and cessation of heartbeats. This action prevented sufficient warning of cardiac arrest. For that reason necessary medical attention did not reach the victim in time to prevent brain death due to lack of oxygen resulting from the cessation of heartbeat and blood flow. This rendered the victim's brain useless. From these actions of the defendant the victim sustained injuries from which he died.
1. The defendant demurred to count four on the ground that it failed to allege that the death occurred within a year and a day of the assault. By another demurrer the defendant attacked count four for failure to allege the date of death, contending this failure rendered the indictment imperfect in form and deprived her of indispensable information. Both demurrers were sustained by the trial court. These rulings are before us in this appeal brought by the State.
A. Under the common law rule death must have occurred within a year and a day from the date the assault or wound was inflicted in order for murder to have taken place. If death did not occur within that time a presumption existed that a cause other than the act of the accused brought about the death. Head v. State, 68 Ga.App. 759, 761, 24 S.E.2d 145 (1943). The State contends this common law rule is no longer in force in Georgia because the 1968 Criminal Code (Ga.L.1968, p. 1249, 1261) abolished common law crimes. The accuracy of this contention need not be decided because we find this indictment alleges a date of death within a year and a day of the assault. The indictment alleges the assault occurred on or about March 11, 1979 and death resulted. The indictment was returned October 30, 1979, less than a year from the assault. Thus, while there is an absence of any allegation of a specific date of death, the indictment necessarily alleges that death occurred within a year and a day from the date of the alleged assault. See Lyles v. State, 215 Ga. 229, 109 S.E.2d 785 (1959); Black v. State, 14 Ga.App. 534, 81 S.E. 588 (1914). It was error for the trial court to sustain the demurrer to count four of the indictment on the ground that it failed to allege the occurrence of death within a year and a day from the date of the alleged assault.
B. The indictment alleges the death of the victim in that the heart stopped beating, the oxygen supply to the brain was cut off, and brain death resulted. It further alleges that the assault upon the victim caused bodily harm by rendering his brain useless, and from the assault the victim sustained injuries from which he died. By demurrer defendant complains that the failure to allege a specific date of death deprives defendant of indispensable information. Defendant contends it is unclear whether the indictment alleges death at the point of cessation of heartbeat, at the point of brain death, or perhaps later at a point of somatic death. 1 "(T)he defendant also is entitled to be informed by the indictment of the time and place of committing the offense, with sufficient certainty to enable him to prepare for his defense." Burkes v. State, 7 Ga.App. 39, 41, 65 S.E. 1091 (1909). "The requisite of a good indictment, as to form, is that the offense with which the defendant is charged be so stated as to give him ample opportunity to prepare his defense." Allen v. State, 120 Ga.App. 533, 534, 171 S.E.2d 380 (1969). The defendant contends that the allegations of death are confusing and insufficiently definite to enable her to prepare her defense. She points out that if death occurred at the initial stop of the heartbeat, her alleged actions may have no causal relation to death. If life ended at the point of "brain death" there are certain special medical indicia to be proven and as to which matters of defense may arise. If the indictment alleges somatic death at a time after heartbeat arrest defendant will prepare to defend on the contention that death occurred at the point of heartbeat arrest. We hold that the failure to either allege the date and time of death in a manner sufficiently specific to indicate the definition of death relied upon, or in the alternative to specify such definition, renders the indictment too uncertain to enable defendant to prepare her defense. The trial court did not err in sustaining the demurrer.
2. Enumerations of error 2 through 8 raise the issue of duplicity. In the several counts of the indictment under attack aggravated assault 2 is charged as the offense and facts in support thereof are alleged. Following are allegations that acts of the defendant also constituted reckless conduct. 3 To avoid the acknowledged rule that a single count of an indictment may not allege two or more separate and distinct offenses, the State relies upon the exceptions known as (1) lesser included offense and (2) the same transaction. Goldin v. State, 104 Ga. 549, 30 S.E. 749 (1898); Nelson v. State, 136 Ga.App. 861, 222 S.E.2d 677 (1975). It has been suggested that count five of the indictment serves as a typical example of the several counts under attack and we find that to be correct. We note that the transaction alleged in count five presents these facts: The defendant decreased the rate of flow of a certain fluid being...
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