Hulsey v. State

11 Ga. App. 258 | Ga. Ct. App. | 1912

Concurrence Opinion

Pottle, J.,

concurring specially. I concur in the ruling as to the charge of the court because I am bound by the decision of this court in Gohen v. Stale, supra. Under the decision of the Supreme Court in McLane v. State, 4 Ga. 335, where the indictment alleges a time beyond the period of the statute of limitations, it is also necessary to allege that the defendant has brought himself within one of the exceptions necessary 'to prevent the bar of the statute from attaching. Sometimes averments in an indictment may be treated as surplusage, and sometimes an unnecessary allegation must be proved. When it does become necessary for the State to prove’ an allegation, whether originally material or not, the evidence must be sufficient to establish the averment beyond a reasonable doubt. I know of no authority for holding that the State can prove any material allegation in an indictment with a less degree of certainty than “beyond a'reasonable doubt.” The moment the conclusion is reached that a particular averment is material, and must-therefore be set forth in the indictment, it becomes necessary for the State to prove this averment beyond a reasonable doubt. An offense committed at a time anterior to -the period fixed in the limitation statute may be alleged to have been committed within the statutory period, and, if the statute of limitations is relied upon as a defense, the State may reply by proving that the accused lias placed himself within one of the exceptions which has prevented the bar of the statute from attaching. But if it were an open question, I would hold that whenever the State alleges an exception, for the purpose of showing that the offense is not barred, it is necessary to prove that exception with the same degree of certainty that any other allegation in the indictment must be proved.

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Lead Opinion

Russell, J.

1. There was sufficient evidence to authorize the jury to find that the accused wag -absent from the State after the commission of the offense, so as to prevent the statute of limitations from running against the State.

2. As to the charge of the court on the statute of limitations, this case is controlled by the decision of this court in the case of Cohen v. State, 2 Ga. App. 689 (59 S. E. 4). Judgment affirmed.