29 Ga. App. 278 | Ga. Ct. App. | 1922
An indictment for forgery was demurred to on the grounds (a) that it is insufficient in law, “ in that said indictment sets out that said note is a genuine note of the man who executed same, and sets out no material allegation that the alteration claimed to have been made would cause any loss to the drawer of said note;” and (b) “that said indictment fails to set out that the. alterations of said note as alleged would cause any loss or did cause any loss to the drawer of said note.” In Barron v. State, 12 Ga. App. 342 (1-e) (77 S. E. 214), this court held that “ in a prosecution for forgery it is not necessary to allege or prove that actual loss resulted from the forgéry.” Under this ruling the demurrers were properly overruled.
The bill of exceptions recites that “ upon the call of the said case and hearing of said demurrer, Dojde Campbell, solicitor-general of said court, stating to the court that said indictment was predicated under section 240 of the Penal Code of Georgia, defendant made motion to quash the said indictment upon the grounds that said indictment set forth no crime under penal statute 240 of the Penal Code of Georgia, 1910, and no offense under said section was set out in said indictment; and upon hearing said motion the court overruled said motion and directed said cause to proceed.” Exceptions pendente lite were filed, and they show that this motion was “made orally in open court before arraignment.” Even though the solicitor-general, upon the hearing of the demurrer, may have stated to the court that “said indictment was drawn under section 240 of the Penal Code, and was not drawn under section 231,” this is no ground for quashing the indictment if in fact it is no good indictment under section 231 of the Penal Code of 1910. See, in this connection, McDonald v. State, 152 Ga. 223. It is not what the prosecuting attorney says about it, but it is the description of the crime given in the indictment, the criminal acts alleged therein to have been committed, that characterizes the offense. McKissick v. State, 11 Ga. App. 721 (76 S. E. 71); Edwards v. State, 22 Ga. App. 796 (97 S. E. 205); Alexander v. State, 122 Ga. 174 (50 S. E. 56). However, the solicitor-general
The indictment alleges that a forgery was committed by making certain material alterations in the' body of a note, but does not allege that the date of the note, which was July 24, 1920, was altered. A copy of the note, including the date, was embodied in the indictment. To support the allegation of forgery a note was offered in evidence, dated April 24, 1920. The admission in evidence of this note was objected to on the ground that its date and that of the note a copy of which was incorporated in the indictment were different, and “therefore the proof did not fit the allegation.” Over this objection the note was allowed in evidence. In Thompson v. State, 118 Ga. 330 (3) (45 S. E. 410), it was held that “ a written instrument set forth according to its tenor in an indictment must be proved as laid, and a material variance will be fatal.” In Haupt v. State, 108 Ga. 53 (2) (34 S. E. 313, 75 Am. St. R. 19), the Supreme Court said: “While in an indictment for forgery only the material parts of the instrument, as a contract, are required to be set out, yet when, as descriptive of the instrument charged to have been forged, minute particulars, such as the number of a check, are set forth in the bill, those particulars must be proved as laid; and when a bill of indictment charges the alteration of a check which is in part described as bearing a specified number, a check of similar import as that described but bearing another number is not admissible as being the original check alleged to have been altered.” Under the rulings in the foregoing cases the court erred in admitting the note in.evidence. See, in this connection, McLendon v. State, 121 Ga. 158 (48 S. E. 902); Johnson v. State, 119 Ga. 257 (2) (45 S. E. 960); Robertson v. State, 97 Ga. 206 (22 S. E. 974); Forrester v. Vason, 71 Ga. 49. There is a wide difference between the rule relating to the proof of the time of the commission of the crime as alleged in the indictment, and proof of the date of the note as set out therein and which is the basis of the prosecution for forgery. It is not necessary to prove the exact date set out in the indictment as the date on which the crime was committed, but the date upon which the
This court is not called upon to consider the 3d special ground of the motion for a new trial, because it cannot be understood without reference to another ground of the motion. “ Grounds of a motion for a new trial should be complete in themselves;- and when a particular ground is under consideration, reference to other grounds should not be required in order to understand the assignments of error.” Bowen v. Smith-Hall Grocery Co., 146 Ga. 157 (4) (91 S. E. 32).
As a new trial must be granted in this case it is unnecessary to pass upon the assignments of error not covered in the foregoing rulings.
Judgment reversed.
