58 Ga. App. 759 | Ga. Ct. App. | 1938
Mrs. Katie Mindler was indicted in two counts in the superior court of Sumter County, Georgia, for the offense of kidnapping. The first count was based on the Code, § 26-1601,
“At common law kidnapping is 'the forcible abduction and carrying away of a man, woman, or child from their country and sending them to another.'” Sutton v. State, 122 Ga. 158, 159 (50 S. E. 60). Neither of the words “abduct” nor “stealing away,” as used in the Code, § 26-1601, necessarily connotes the taking away beyond the limits of the county, and the Code recognizes this, in that it says that in addition to the forcible abduction and stealing away of any person he must also be sent and conveyed beyond the limits of the State or county, and not merely be so sent, but he must be so sent against his will, before the crime of kidnapping becomes complete. It will be observed that the indictment is in the language of the above-quoted Code section, except that it fails to allege “against his [her] will.” The statute does not say “forcibly or against his will,” but says “forcibly and against his will.” A single sentence covers the entire Code section, and is in the conjunctive form, not the disjunctive. The abducting and-stealing away from Sumter County,. Georgia, must be forcibly done, and the subsequent sending into another county must be against her will. In other words, though physical force were used in abducting and stealing away
The allegations of count 1 of the indictment do not set forth every essential element of the offense alleged to have been committed, in that it does not allege that the victim of the kidnapping was sent and conveyed beyond the limits of Sumter County, Georgia, against her will. This count was bad, and the demurrer should have been sustained. The verdict was as follows: “We, the jury, find the defendant, Mrs. Katie Mindler, guilty as charged, and recommend misdemeanor punishment.” We can not better express the law on such a state of facts than to adopt the language of our Supreme Court in Sutton v. State, 122 Ga. 158, 160 (50 S. E. 60), as follows: '“The general rule, is, that where there are several counts in an indictment, a general verdict of guilty is valid if there be one good count, though the others are defective, the presumption being that the verdict was rendered on the good count, and not on the defective ones. This general rule does not appfy, however, when there are two counts in an indictment, one good and the other fatally -defective, and where a demurrer to the defective count has been improperly overruled. In such a ease a general verdict of guilty can not be sustained, since it is impossible to know on which count it was rendered; and if rendered on both, the verdict of necessity must be illegal. 22 Enc. Pl. & Prac. 843-4; McMurtry v. State, 38 Tex. Crim. 521; Avirett v. State, 76 Md. 510; People v. Turner, 113 Cal. 278. As the accused, in the present case, was forced to trial on both counts in the indictment, on the bad as well as on the good, the trial was illegal, and it is not necessary for this court to pass upon the various rulings made during the trial of which complaints were made in the motion for a new trial.” The demurrer in the instant case to count 1 of the indictment should have been sustained. Durden v. State, 152 Ga. 441 (110 S. E. 283). Judgment reversed.