32 S.E.2d 437 | Ga. Ct. App. | 1944
Lead Opinion
An alternative charge in an indictment that the accused cut and stabbed a named person with a knife, "or other sharp instrument," renders the indictment bad on special demurrer.
The State contends that if there was error, it was harmless, and for that reason the case should be affirmed. This court is bound by an opinion of the Supreme Court even though it is not unanimous, and the ruling in the case of Henderson v. State,
supra, with one judge dissenting, is absolutely controlling on the point that the overruling of the special demurrer was error. The principle of law ruled in the Henderson case seems to be supported by rulings in similar cases in the other States and by text writers. As to whether *805
the overruling of the demurrer was reversible error, the Supreme Court, in Haley v. State,
The rules for determining whether the allegations of the indictment are sufficient to withstand a special demurrer are different from those which govern in determining whether the proof supports the allegations of a good indictment. In the former instance the rule is "that a demurrer raising special objections to an indictment should be strictly construed against the pleader [the State];" whereas, in the latter instance, in dealing with a question of evidence, latitude is allowed for drawing inferences and deductions from the evidence to support the State's case. Green v. State,
The Henderson case and the Haley case, both decided by the Supreme Court, are controlling in the instant case, and the judge erred in overruling the special demurrer.
Judgment reversed. Gardner, J., concurs.
Dissenting Opinion
The indictment, in charging the defendant with the offense of assault with intent to murder, stated that he, "with a certain pocketknife or other sharp instrument, the same being a weapon likely to produce death," did unlawfully cut, stab, and wound Waco Sanders, with the intent to kill and murder him. The defendant filed a special demurrer alleging that, since the indictment charged the assault was made "with a certain pocketknife or other sharp instrument," the charge was in the alternative, and the indictment was fatally defective. The demurrer was overruled, and that judgment was excepted to. The case then proceeded to a verdict and judgment of stabbing. A motion for a new trial, embracing the general grounds only, was denied and that judgment is assigned as error.
Assuming that the overruling of the demurrer was error, I think that, under numerous decisions of the Supreme Court and this court, the error was harmless and does not require another trial. It is well settled that the erroneous overruling of a special demurrer is not harmful error where it affirmatively appears from the evidence in the case that the error did not result in injury to the party interposing the demurrer; and in determining whether the error has resulted in injury, the court may look to the record as a whole. Hall v. State,
In Atlanta Coach Company v. Cobb,
Addendum
Denied. Broyles, C. J., and Gardner, J., concur.