113 Ga. 1148 | Ga. | 1901
The accused was arraigned upon an accusation charging him with the offense of stabbing, it being therein alleged that he did “ unlawfully, with a knife, or some other like instrument, cut and stab ” a named person. To this accusation the accused demurred upon the ground “ that the charge is in the alternative,” &nd for this reason the accusation is fatally defective. The demurrer was overruled, and he excepted.
Pleadings which are in the alternative are defective in form, and this defect may be taken advantage of by special demurrer. Ship-man’s Com: Law. PL §405, p. 266; Stephen, PL (Heard) *387 — 8; Wharton, Cr. PL & P. (9th ed.) § 161; 10 Enc. PI. & P. 538. This .ancient and well-settled rule of pleading is still of force in this State. Sanders v. State, 86 Ga. 717 (2); Grantham v. State, 89 Ga. 121 (2). Not every alternative statement in an indictment, however, will vitiate it. If the disjunctive can be properly construed to be synonymous with to wit, the alternative allegation will not render the indictment bad; so it was held that an indictment for horse stealing, which charged that the horse stolen was of a '“bay or brown” color, would not on account of this alternative statement be held bad, because bay and brown meant the same thing. State v. Gilbert, 13 Vt. 647. See also State v. Ellis, 4 Mo. 474; Cobb v. State, 45 Ga. 11. If that which follows the disjunctive in the indictment can be properly construed to be merely 'descriptive of that which precedes it, and not an independent allegation, the alternative statement will not make the indictment fatally defective. State v. Hester, 48 Ark. 40. Finally, if the disjunctive and all that follows it can be rejected as surplusage, then the alternative averment will not be ground for quashing the
In Langston v. State, 109 Ga. 153, the accused was charged with having seduced a virtuous unmarried female, “ by persuasion and promises of marriage, and by other false and fraudulent means.” It was ruled that the words, “and by other false and fraudulent, means,” could not be treated as surplusage, and that a special demurrer calling for more specific information as to the false and fraudulent means used was well taken. In that case the accused was-charged with seduction, and the words last quoted merely described' in general terms the manner in which the offense was committed.
Judgment reversed.