Sims v. State

118 Ga. 761 | Ga. | 1903

Cobb, J.

The accused was arraigned upon a special presentment charging him with the offense of assault and battery, in which it was alleged that the accused, on a given day and in a named county, “then and there unlawfully and with force and arms, in aud upon one Jeff-Stephenson, in the peace of said State then and there being, did make an assault, and him, the said Jeff ■Stephenson, unlawfully and with force and arms did beat, contrary to the laws of said State,” etc. The accused demurred to the presentment, upon the grounds that it did not specify any acts ■constituting the assault or how or in what manner the beating was ■done, whether with the hand, fist, or weapon. The demurrer was overruled, and the accused excepted.

The presentment charged the offense substantially in words which are found in approved common-law precedents, as well as ia precedents which have been approved, and followed in this country for more than a hundred years. See 3 Chit. Cr. L. (ed. 1847) 820; 1 Arch. Cr Pr. & Pl. (8th ed.) 915; Bish. Dir. & Forms (2d ed.) § 201; 2 Enc. Forms, 229 et seq. This form of indictment for assault and battery was adopted by our criminal pleaders in the early history of this State, and has been uniformly followed to the present time. See Cobb’s Penal Code (ed. 1850), 91; Hansford v. State, 54 Ga. 56; Bard v. State, 55 Ga. 320; Hill v. State, 63 Ga. 583. Certainly an indictment which would be sufficient to withstand the scrutiny of a common-law pleader ought to be held sufficiently technical in the 20th century. The rules laid down by Mr, Justice Lumpkin in Johnson v. State, 90 Ga. 441, in reference to the requirements to be met in framing an indictment for assault with intent to murder, have never, either at common law or in this State, been applied to indictments for assault and battery. See, in this connection, Robinson v. State, 118 Ga. 32. The demurrer was without merit, and was properly overruled. Judgment affirmed.

All the Justices concur.