Harris v. State

37 Ga. App. 113 | Ga. Ct. App. | 1927

Bloodworth, J.

(After stating the foregoing facts.) The indictment is so vague and indefinite that it does not inform the accused of the exact transaction for which he is indicted. It “does not set out whose agent defendant claimed to be, or whom he claimed to represent in taking orders for clothing,” nor does it “set out any facts so as to enable this defendant to prepare his defense.” In Burkes v. State, 7 Ga. App. 39 (65 S. E. 1091), Chief Judge Hill (p. 42) quoted with approval the following from Archbold’s Or. Pr. & PL: “It is an elementary principle of criminal pleading that where the definition of an offense, whether it be at common law or by statute, includes generic terms, it-is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition, but it must state the species; it must descend to particulars.” In this case we think the accused was entitled to know by allegations in the indictment the particular person, firm, or corporation that he was alleged to represent as agent. Without such an allegation the principal would probably be undiscoverable, and the accused might be placed absolutely at the mercy of the prosecution though the testimony against him may be false. It is true that upon a trial of the case the State would be required to affirmatively show that the accused represented that he was the agent of and authorized to take orders for some concern, but the defendant should be put upon notice by a specific allegation in the indictment and thus be enabled to prepare to meet the proof made by the State on this vital question. It would seem to be unfair that in order to prepare his defense he must be called upon to investigate every concern in the State who had agents employed for the purpose of taking orders for clothing. “He had the right to have this essential element of the offense described with sufficient particularity to relieve him from unnecessary burdens in making his defense.” For these reasons we think that the court erred in overruling the special demurrer, and because of this error the further proceedings were nugatory. Carter v. State, 12 Ga. App. 432 (2) (78 S. E. 205); Roughlin v. State, 17 Ga. App. 210 (3) (86 S. E. 452); Wingard v. State, 13 Ga. 400 (2).

Judgment reversed.

Broyles, 0. J.,-and Luke, J., concur.