47 Ga. App. 833 | Ga. Ct. App. | 1933
The special presentment in this case charges that on February 5, 1933, in Washington county, Georgia, Adeline Hall, “unlawfully and with force and arms, did knowingly send a letter to Lena May Harden, threatening to maim, wound, kill, and murder the said Lena May Harden.” The jury found the defendant guilty, and she excepts to the overruling of her demurrer to the indictment, and to the judgment overruling her motion for a new trial.
The first three grounds of the demurrer present the same contention, to wit, that the special presentment does not charge any offense against the laws of this State. The fourth ground of the demurrer is that “the alleged threatening letter mentioned in the indictment is not copied and fully set out in said indictment; that the indictment does not fully and clearly put this defendant on notice as to the nature of the charge against her, and is therefore vague, indefinite, and uncertain.” Penal Code (1910), § 119, under which the presentment is drawn, reads: “If any person shall knowingly send or deliver any letter or writing, threatening to accuse another of a crime, with intent to extort money, goods, chattels, or other valuable thing, or threatening to maim, wound, kill, or murder such person or any of his family, or to burn or otherwise destroy or injure his house, or other property real or personal,
The true test of the sufficiency of an indictment to withstand a general demurrer is: Can the defendant admit the charge as made and still be innocent? To ask this question in regard to the presentment in this case is to answer it in the negative; and we hold that the first three grounds of the demurrer are without merit. See Newman v. State, 63 Ga. 533, 534; Dukes v. State, 9 Ga. App. 537 (71 S. E. 921).
The fourth ground of the demurrer, complaining that the letter was not set out in the presentment, is in the nature of a special demurrer, and demands fuller consideration. “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this code, or so plainly that the nature of the offense charged may be easily understood by the jury.” Penal Code (1910), § 954. Omitting its formal parts, the form given for indictments under this code section merely requires that they “state the offense, and the time and place of committing the same, with sufficient certainty.” In Gibson v. State, 118 Ga. 29 (44 S. E. 811), the indictment charged the defendant with obstructing legal process (an award of a cow in a possessory warrant proceeding), but did not set out how the process was obstructed. One ground of the demurrer was that the indictment “did not set out the manner in which the process was obstructed.” The Supreme Court held: “The demurrer was properly overruled. The indictment was more specific in charging the offense than is the Penal Code in defining it. The Penal Code, § 939, provides that an indictment shall be deemed sufficiently technical and correct when it states the offense in the terms and language of the code or so plainly that the nature of the offense 'charged may be easily understood by the jury. This section, however, was not ‘ designed to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial.’ Johnson v. State, 90 Ga. 441 (16 S. E. 92). The indictment in the present case not only contained the terms of the code definition of the offense, but was otherwise sufficient.” In State v. O’Mally, 48 Iowa, 501,
In Bradfield v. State, 73 Texas Crim. 353 (166 S. W. 734), the charge was that the defendant “did then and there unlawfully send and deliver to Miss Alma Walder an anonymous letter, typewritten in the Spanish or Mexican language, which said letter, according to its words and tenor, reflects upon the chastity, virtue, good character and reputation of the said Miss Alma Walder, to whom said letter was sent and delivered and intended for.” The indictment follows closely the wording of the statute upon which it is based. In that decision it was said: “Another contention of appellant is that the complaint and information are fatally defective in that they do not contain the said letter. In our opinion it was unnecessary to copy the letter in either the complaint or information.” For a brief of decisions construing section 954 of the Penal Code (1910), supra, see Cook v. State, 22 Ga. App. 770, 773 (97 S. E. 264).
In the instant case the words of the defendant are not the gist of the offense, which is found in the intention of defendant to convey thereby a threat. The gist of the offense is the threat, and the threat which was the act of the defendant was sufficiently stated. The presentment sets out the time and place of the alleged offense and the parties involved therein, and follows closely the language of the statute. Furthermore, we are of the opinion that the presentment complies with the requirement that it state the offense “so plainly that the nature of the offense charged may be easily understood by the jury.” We hold that the demurrer was not meritorious, and that the judge properly overruled it.
Special ground 2 of the motion for a new trial avers that a new trial should be granted “because the verdict of the jury and the judgment of the court are null and void, for the reason that the venue and jurisdiction of the alleged crime was not shown to be within the county of Washington and State of Georgia, nor was the time of the commission of the offense proved as alleged in the special presentment and within the statute of limitations.” Lena May Harden testified: “I know Adeline Hall. I received this communication from her in Washington county, State of Georgia. I received this letter by hand and not by mail. My husband, Tom Harden, brought it to me,” The .statute inhibits the “sending or
Special grounds 3 and 4 are abandoned.
Omitting some of the extremely scurrilous parts of the letter in question, we quote from it as follows: “Hello, Lena. . . I just mean to get you told that I am coming down this road every night next week. I am going to give you chance to law away and kill me every time you see me. I got plenty of damn 38’s, and you are a damned S. O. B. . . Since you are telling lie, I parted you
Judgment affirmed.