47 Ga. App. 226 | Ga. Ct. App. | 1933
The defendant was indicted for embezzlement. The language of the indictment is almost identical with that of the indictment in Camp v. State, 31 Ga. App. 737. This indictment, however, besides alleging: the defendant having, by virtue of his employment, the custody and control of the moneys, funds, etc., added in parenthesis, after the words “custody and control,” the words “and access to,” and at another place the words “the same having been intrusted to and accessible to him.” (Italics ours.) The motion to quash contained this paragraph: “Because the indictment is insufficient in law as a charge of embezzlement wherein it is charged that the defendant had ‘access to the funds of the bank, or that said funds were ‘accessible to the defendant.” On presentation of the motion the court said: “The motion is overruled.” Thereupon the solicitor-general stated that the indictment did not follow the terms of the statute, and requested the court to sustain the motion as to the allegations mentioned above, to wit: that the defendant had “access to” the money, and that it was “accessible to” him. The motion as to these terms was sustained and the remainder of the grounds of the demurrer were overruled. The question here presented is whether the sustaining of this motion or demurrer was error, and whether it is in effect an “amendment” of the indictment.
The authorities are in conflict and the question does not seem to have been previously passed upon by Georgia courts. The decided weight of authority is to the effect that any part of a count which is in its nature separable from the rest may be removed and the remainder allowed to stand, as the defendant is not injured by the removal of superfluous or double allegations. Bean v. State, 77 Me. 486. In the case of Commonwealth v. Uhrig, 167 Mass. 420
The evidence amply supports the verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed.