118 Ga. 299 | Ga. | 1903
The accused was placed on trial upon an accusation charging him with a violation of the Penal Code, § 390, it being alleged that he was guilty of a notorious act of public indecency consisting of the exposure of his private parts in a public place, where he might have been seen by many persons, and where he was in fact seen by two persons, one a man and the other a woman ; the accusation concluding with the words, “ contrary to the laws of said State,” etc. Before pleading to the accusation, the accused moved orally to quash the same, on the ground that it failed to-charge that the act of public indecency alleged “tended to debauch the morals.” This motion was overruled. Having been convicted, the accused moved for a new trial, which was denied, and he filed a hill of exceptions complaining of the refusal of the court to sustain his motion to quash the accusation and to grant a new trial.
Inasmuch, therefore, as the words “tending to debauch the morals ” do not relate to a matter which the State must prove by evidence, or which is capable of being disproved in like manner by the accused, their omission can not afford him any cause of complaint. Of course the indictment must allege an act which tended to corrupt or debauch the morals, but when an act which appears-on its face to have had this effect is alleged, there need.be no affirmative averment that it in fact- did so. See, in this connection, the intimation made in Hembree v. State, 52 Ga. 242, it being there suggested that when in an indictment for perjury the false statements alleged to have been made appear on their face to have been material to the issue on trial, it would not be indispensably necessary to aver that they were material. It would seem to follow from the’ line of reasoning above employed, that the omission