Walker v. State

• Decision Date: 21 December 1912
• Docket Number: (No. 4,524.)
• Citation: 12 Ga.App. 91,76 S.E. 762
• Parties: WALKER. v. STATE.
• Court: Georgia Court of Appeals

76 S.E. 762

12 Ga.App. 91

WALKER.

v.STATE.

(No. 4, 524.)

Court of Appeals of Georgia.

Dec. 21, 1912.

(Syllabus by the Court.)

Indictment and Information (§§ 87, 147, 202^*)—Criminal Law (§ 186*)—Requisites of Accusation—Date of Offense—Former Jeopardy.

An indictment which alleges that the offense described therein was committed on a named day and month, but omits to state the year of its commission, is not absolutely void, but is open to special demurrer before pleading to the merits. The defect in the indictment in failing to state the year when the offense was committed is a mere formal defect and cannot be taken advantage of after verdict. A verdict of acquittal under said indictment is a bar to a subsequent conviction for the same transaction or offense covered by the indictment.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 244-255, 490-494, 640-650; Dec. Dig. §§ 87, 147, 202;* Criminal Law, Cent. Dig. §§ 312, 320, 345-361; Dec. Dig. § 186.*]

Error from City Court of Americus; W. M. Harper, Judge.

John Walker was convicted of gaming, and brings error. Reversed.

Hollis Fort, of Americus, for plaintiff in error.

Zach Childers, Sol., of Americus, and J. R. Williams, Sol. Gen., of Americus, for the State.

HILL, C. J. Plaintiff in error was tried on an indictment which was as follows (omitting the formal parts): "For that the said John Walker, on the 2 day of Oct in

the year nineteen hundred and——in the

county aforesaid, did then and there unlawfully and with force and arms, play and bet for money and other things of value at a certain game played with cards, to wit, poker, skin, seven-up, and other game or games played with cards." No demurrer was filed to the indictment, and the accused went to trial on the plea of general issue. The state offered evidence that the offense charged in the indictment took place on the 2d day of October, 1911. The accused objected to this evidence on the ground that it was immaterial and irrelevant, as the indictment charged that the offense took place in the year 1900, and the trial judge sustained the objection and excluded the testimony, whereupon a verdict of not guilty was returned. Subsequently an accusation was preferred in the city court of Americus charging the plaintiff in error with the offense of gaming, and on arraignment he filed a plea of autrefois acquit This plea was in proper form. It was conceded that the offense charged both in the indictment and in the accusation was the same transaction. The judge then overruled the plea of autrefois acquit, and on the trial upon the accusation the accused was convicted. He filed a motion for a new trial, and his motion was granted. On the second trial upon the accusation he was again convicted, and his motion for a new trial was overruled. On the first trial upon the accusation the accused excepted to the judgment overruling his special plea of autrefois acquit, and this exception was duly preserved in the record. On the second trial upon the accusation the accused did not present to the trial court this special plea of autrefois acquit, but he made it a ground of his motion for a new trial, and he insists also upon the exception pendente lite. We do not think that he was deprived of his right under this exception pendente lite, because it was not insisted upon on the second trial. It was duly preserved as a part of the record in the case, and, as he assigns error on it in this court, he is entitled to have it decided.

The first, and really the only, question presented is as to whether the trial judge erred in overruling the plea of autrefois acquit, and the determination of this question depends solely upon the character of the indictment under which he was first tried. If that indictment was defective in form, but this defect was cured by verdict, the plea should have been sustained, for it was conceded that the transaction covered by the indictment and the accusation was the If it was an indictment void on its face, up-on which no valid judgment could have been entered, the accused was not in jeopardy thereunder, and his plea was not a good one, and there was no error in overruling it. So the first question that we consider is whether or not the allegation as to the time when the offense of gaming was committed, as set out in the indictment, was a fixed date, to wit, in the year 1900. If the time alleged when the offense was committed was 1900, then, under authority of the Supreme Court in the case of McLane v. State, 4 Ga. 335, the indictment was absolutely void, and the accused, on his trial thereunder, was not in jeopardy, as no valid judgment could be entered thereon against him. In that case it appeared on the face of the indictment that the offense with which the defendant was charged was barred by the statute of limitations, and none of the exceptions mentioned in the statute to prevent its operation were alleged therein, and it was held that a motion to arrest the judgment should have been sustained. In other words, that if the offense appeared on the face of the indictment to have been barred by the statute of limitations in reference thereto, and some statutory exception is relied upon to prevent this bar, such exception should be alleged in the indictment. If it is not alleged, the exception could not be proved by the state, and a verdict of conviction thereon would be a mere nullity to which a motion in arrest of judgment would properly lie.

In the case of Hansford v. State, 54 Ga. 55, the decision in the McLane Case was cited, with the statement that it had never been overruled or affected by any subsequent statute, and was therefore binding; and it was distinctly reaffirmed that an exception that is relied on to prevent the bar of the statute of limitations must be shown in the indictment. There is some diversity in the decisions on this subject, some holding that, where an indictment shows that the offense is barred by the statute and no statutory exception is alleged, the state will nevertheless be allowed on the trial to show that the offense was within the exception, and that the statute of limitations does not apply. But this is immaterial, as the decision in the McLane Case, supra, approved in the Hansford Case, is controlling on the subject, and under this decision it is clear that; upon the assumption that the time alleged in the indictment when the...