170 Ga. 70 | Ga. | 1930
John Shehany was tried, convicted, and sentenced to imprisonment at hard labor for not less than three years and not more than five years, under an indictment charging him with the offense of “robbery, for that said accused . . with force and arms did wrongfully, fraudulently, and violently, by force and intimidation, take from the person of R. C. Parker, with intent to ■steal same, forty dollars in money, the property of said Parker, contrary to the laws of said State,” etc. Thereafter Shehany filed a petition for habeas corpus, alleging that he was being detained by Lowry, sheriff, under pretence of the sentence imposed upon him after conviction as above set forth, and that the restraint was illegal because the indictment under which petitioner was convicted was and is utterly void and charges no crime against petitioner, in that it “is not alleged that anything of value was taken from the person of R. C. Parker, or anyone else, without the consent of said Parker, or anyone else,” and that the failure to allege one of the essential elements of the offense of robbery, “want of consent of the person alleged to have been robbed,” rendered the indictment fatally defective, as such indictment is not amendable, and that therefore the judgment or sentence of the court based upon said indictment
The sheriff filed no response and introduced no testimony. At the hearing it was admitted that the statements of fact in the petition, as to the proceedings as therein set forth, were true. The judge remanded the petitioner to custody, and he excepted to this judgment as contrary to law.
Section 954 of the Penal Code provides that “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury.” This is the rule of construction established by our law which is generally employed in determining whether an indictment sufficiently sets forth the offense sought to be charged. See cases cited 7 Enc. Dig. Ga. E. 263, 264. Under this provision an indictment is sufficient if it states the offense so plainly that a man of rational understanding can not fail to understand it (Stephen v. State, 11 Ga. 225), or, to use the express language of the code section, “so plainly that the nature of the offense charged may be easily understood by the jury.” Under the wording of the indictment in this case, was the offense stated so plainly that the nature thereof could be easily understood by the jury? The offense is substantially charged in the precise words of section 148 of the Penal Code, defining robbery, except for the omission of the words “without the consent of the owner.” It is undoubtedly true that there can be no robbery unless the money or goods be taken without the consent of the owner, but it has been held that the word “fraudulently,” when used in the indictment, if there be equivalent words employed, or if the offense be charged in such language as to exclude any thought other than that the taking was without the consent of the owner. An intent to steal is a substantive element in the commission of the offense of robbery (Sledge v. State, 99 Ga. 684, 26 S. E. 756); but it has been held that the word “fraudulently,” when used in connection with the words “unlawfully, and with force and arms, wrongfully, fraudulently, and violently take from the person . . without the consent of the owner, by force and intimidation,” im
Counsel for the plaintiff in error further contend, as ground of invalidity of the indictment under consideration, that the indictment is as closely akin to larceny from the person, as defined in section' 172 of the Penal Code, or larceny from the person by any sort of secret, sudden, or wrongful taking, as stated in section 174 of the Penal Code, as it is to robbery as defined in section 148 of the Penal Code. The larceny from the person defined in section 172 is by the express language of the statute, “as distinguished
The indictment under consideration is not void, and the trial judge did not err in refusing to discharge the petitioner from custody. Judgment affirmed.