10 Ga. App. 819 | Ga. Ct. App. | 1912
To the indictment (which had been transferred from the superior court to the county court of Greene county) the defendant interposed a demurrer, setting up that the indictment did not charge him with 'any offense, because it alleged that Paul Green, alias Coot Green, did play and bet for money, and not Paul Gunn; and that the demurrant had never been known as Paul Green; also that the indictment showed on its face that it was not in the shape in which it was when it left the grand-jury room, or was returned by the grand jury, for “some one had attempted to make Gunn' out of Green.” A third ground of the demurrer, based upon the fact that a prior indictment for the same offense had been
1. It is very plain, from the record, that the judge of the county court, who had the original indictment before him, overruled the plea of misnomer because it appeared to him that the indictment did not charge the defendant in the name of Paul Green or Coot Green, as alleged in the plea, but that the indictment stated the name of the accused to be Paul Gunn or Coot Gunn, thus charging him in his true name. It is true, as stated by counsel for plaintiff in error in his brief, that Gunn and Green could not be treated as idem sonans, but it is easy to see how Green and Gunn might be mistaken for each other when written by one who wrote hastily, and whose handwriting was not plainly legible. The judge of the county court had the original writing before him, and, therefore, if the writing was hard to decipher, had a better opportunity of determining what was really written in the indictment than a reviewing court could possibly have. Evidently he adjudged the name of the accused, as written in the indictment, to be Gunn, and not Green; and, this being so, the plea' of misnomer could not be sustained. Furthermore, the defendant admitted that he was apparently accused in his true name of Gunn, because he alleged that the indictment had been altered subsequently to its return into court by the grand jury. And, as further showing that the accused was charged in his true name, no matter if the writing was bad, or even if it had been altered, the clerk of the court, in transmitting a copy of the indictment to this court, puts the name of the defendant as Gunn, wherever it appears in the indictment. It is not suggested that the certified copy of the record is incorrect, and no motion is made here to correct it. We are therefore obliged to assume that the name of the defendant, as stated in the original indictment, . appears so written therein that even if it is doubtful whether it is Gunn or Green, it can reasonably be interpreted to be Gunn, and
2. It appears, from the recital of the petition for certiorari, which the county judge in his answer admitted to be true, that the solicitor admitted that the indictment did at one time read as follows: “charge and accuse Paul Gunn, alias Coot Gunn, with the offense of misdemeanor, for that the said Paul Green, alias Coot Green, did play and bet for money,” etc., and that some one had changed it after it left the grand-jury room. Tie fact that extraneous evidence is required to support this second ground of the demurrer shows that the alleged defect or the alleged alteration of the indictment could not be reached by demurrer. A demurrer must necessarily be addressed to defects apparent upon the face of the pleadings as they are at the time the demurrer is filed, and must be addressed to the pleadings as they appear of file. The overruling of this ground of the demurrer by the judge of the county court could properly have been placed either upon the ground that the demurrer was speaking of something not apparent upon the face of the record (and certainly so if the original paper itself did not plainly show it had been altered), or upon the ground that the defendant should have presented the objection by plea in abatement.