5 Ga. App. 472 | Ga. Ct. App. | 1909
Lanier was tried upon an accusation charging him with the offense of stabbing, “for that the said William Lanier, in
There can be no question that the accusation should have been quashed if the point now presented had been raised by a demurrer presented before the issue was joined, because it is well settled that all exceptions and provisos in criminal statutes must be negatived before the defendant is properly charged with an offense as to which exceptions are provided. It is equally well settled that objections which go merely to the form of the indictment must be raised by demurrer; otherwise such defects are to be considered as waived. The defendant in the present case waived any exceptions to the form of the indictment, “and, as no motion in arrest of judgment should be sustained for any matter not affecting the real merits of the offense charged in the indictment,” the single question presented is whether the omission from the accusation of an averment negativing the exception, by which one is permitted to stab in self-defense or under other circumstances of justification, rendered the indictment so fatally defective that it failed to charge a violation of the law. In other words, is the accusation so defective that no judgment can be entered upon the verdict finding the defendant guilty? As stated above, and as held in Isom v. State, 83 Ga. 378 (9 S. E. 1051), the indictment should have negatived the exception. The question therefore arises as to whether the indictment is sufficient, in view of the defendant’s waiver of formal defects, to charge an unlawful stabbing. In our opinion the motion in arrest of judgment was properly overruled. While, under the strict rules of pleading, the exception in behalf of the plaintiff in error should have been negatived, the averment that the stabbing
We are aware that the Supreme Court held in Hardin v. State, 106 Ga. 388 (32 S. E. 365, 71 Am. St. R. 269), that the mere use of the word “unlawful,” in describing an act alleged to be criminal, is insufficient to set out the offense of selling liquors unlawfully. But even if the Hardin case is not overruled by the decision in Tarver v. State, 123 Ga. 496 (51 S. E. 501), the ruling in Hardin’s-case was based upon the absence from the indictment of the words-“contrary to the laws of said State, the good order, peace, and. dignity thereof,” which are required by express statute. In the-Hardin case the word “unlawful” is held to be insufficient because, as remarked by Judge Lewis, it might be uncertain whether the: unlawful' sale was in violation of the laws of the United States or some other jurisdiction, instead of the laws of this State. In the present case, however, it is alleged; not only that the stabbing was unlawful, but that it was contrary to the laws of this State. We-do not know that the exact question has been heretofore presented in the ease of stabbing, where this was the only offense charged, in the accusation, but 'pur opinion, that the offense was sufficiently charged in the indictment to permit the judgment to be entered, upon the verdict, is supported, in some degree, at least, by the de
- In the Arnold case Judge McCay held that verdicts “are not- to be set aside unless from necessity,” and affirmed the judgment of