106 Ga. 384 | Ga. | 1899
This case came on for trial in the county court of Putnam county, on an indictment found by the grand jury of that county, charging the accused with unlawfully selling spirituous liquors. There was an entire omission from the indictment of the following words embodied in the form prescribed by the •statute for such instruments, namely:, “contrary to the laws of said State, the good order, peace, and dignity thereof.” Before) arraignment and plea, the accused demurred to the indictment,, “because the same does not follow the form prescribed by th<u statute, and does not allege that the acts therein charged were) ‘contrary to the laws of said State, the good order, peace, and. dignity thereof,’ as required by the statute, and hence is fatally defective and void.” The judge of the county court overruled the demurrer; whereupon the accused petitioned the superior court, praying for a writ of certiorari, alleging error in the judgment of the court overruling his demurrer. The judge of the superior court passed an order refusing to sanction this petition, which order is assigned as error in the bill of exceptions.
There can be no question that the legislature of this State has power to prescribe a particular form for an indictment by a grand jury. It can dispense with all forms and provide new ones. It can declare that no particular form is essential to the validity of such instruments, or it can imperatively require that they shall contain certain words and allegations. The simple
We do not think the case of Loyd v. State, 45 Ga. 57, in conflict with our decision in this case. It appeared in that case that there were two counts in the indictment. The first count began and concluded in the form required by the statute. The second count, while it concluded .with “contrary to the laws of) said State,” etc., omitted the words, “And the jurors aforesaid, in the name and behalf of the citizens of Georgia.” These words omitted from that count, how.ever," appeared in the first count of the indictment. It is true the statute requires that where there is more than one count, each additional count shall commence with the words quoted. The words prescribed by the form, having been used at the commencement of the indictment, might be construed as qualifying all the counts that', followed. This was simply, a decision by two Judges of this-court that the form of an indictment, as prescribed by the law, need not be followed to the letter. It is sufficient if it conform in all material particulars. The writer.is inclined to doubt, the correctness of that decision. It seems to be against the decided weight of authority. In State v. Wagner (Mo.), 24 S. W. Rep. 219, a similar defect in one count in an indictment was held to be fatal. The old rule was adhered to in that case, that “every separate count should charge the defendant as i'f he had committed a distinct offense,” and in the opinion of Sherwood, J., quite an array of authorities is cited in support of the decision. The difference, however,, between the case of
Some of the authorities above cited have gone to the extent of declaring that such a defect in an indictment is fatal, whether especially excepted to or not. Such is the ruling in the case ’
We think, therefore, the demurrer to the indictment in this case should have been sustained,,and the indictment quashed; and that the judge below erred in refusing to sanction the petition for certiorari.
Judgment reversed.