Walker v. State
| Decision Date | 15 September 1945 |
| Docket Number | 30834. |
| Citation | 35 S.E.2d 391,73 Ga.App. 20 |
| Parties | WALKER v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied Oct. 5, 1945.
Syllabus by the Court.
The overruling of the certiorari was not error.
G. C. Walker was tried in the criminal court of Fulton County on a special presentment containing six counts and charging him with violating the usury laws of the State. On the calling of the case Walker presented a written plea or motion containing two counts and denominated by him as a 'plea of estoppel, abatement, and motion to quash' the presentment. Both counts of the plea or motion were stricken on written demurrers, and that ruling was excepted to. The case was tried by the judge, without the intervention of a jury and, after the introduction of evidence by both parties and the statement of the defendant, the court adjudged the accused guilty on all six counts of the presentment. Subsequently the defendant's certiorari was overruled by a judge of the superior court, and that judgment is assigned as error in the bill of exceptions.
R. R Jackson, of Atlanta, for plaintiff in error.
E. E Andrews, Sol. Gen., Lindley W. Camp, Sol., and Durwood T Pye, all of Atlanta, for defendant in error.
BROYLES Chief Judge (after stating the foregoing facts).
1. Was the plea of 'estoppel, abatement, and motion to quash' the presentment properly dismissed on demurrer? The 'plea,' properly construed (most strongly against the pleader), was a motion to quash the presentment. The 'plea' sets forth many reasons of law which, the plea contends, show that the presentment was insufficient in law. It also sets forth many matters of fact which, the plea contends, show that the defendant is not guilty of the offenses charged. Those matters of fact were facts outside of the other pleadings and the record, and could not be set up in a motion to quash the presentment. A motion to quash an indictment is merely a demurrer thereto, and an indictment is not demurrable for matters of fact dehors the pleadings and the record. Tate v. State, 24 Ga.App. 279, 100 S.E. 765. The only thing that the 'plea' could legally set up was to question the sufficiency in law of the presentment. Cox v. State, 3 Ga.App. 609(3), 60 S.E. 283; Owens v. State, 54 Ga.App. 417, 187 S.E. 890; Golden v. State, 45 Ga.App. 501, 165 S.E. 299; Daniel v. State, 63 Ga.App. 12(1), 10 S.E.2d 80. The motion to quash the presentment should be treated as a demurrer, general and special. The presentment is substantially in the language of the indictment in Mell v. State, 69 Ga.App. 302(1), 25 S.E.2d 142, which this court held was sufficient against general and special demurrers raising substantially all the questions which the 'plea' in the instant case can properly be construed to raise. See also, in this connection, Crowe v. State, 44 Ga.App. 719, 162 S.E. 849; and Jarvis v. State, 69 Ga.App. 326, 25 S.E.2d 100.
Count 1 of the presentment, which was drawn under the Code, §§ 25-301 and 25-9902, charged that the accused failed to secure a license, as provided by law, to engage in the business of lending money in amounts of...
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