THE STATE v. ENGLISH; and vice versa.
S02A1808, S02X1809
Supreme Court of Georgia
March 24, 2003
276 Ga. 343 | 578 SE2d 413
HINES, Justice.
Adriаn English was charged in a seven-count indictment in connection with the death of his infant son. English was charged with: Count I - malice murder; Count II - felony murder while in the commission of cruelty to children in the first degree; Count III - felony murder while in the commission of aggravated battery; Count IV - felony murder while in the commission of aggravated assault; Count V - cruelty to children in the first degree; Count VI - aggravated battery; and Count VII aggravated assault. English filed generаl demurrers to Counts III, IV, VI, and VII and special demurrers with regard to all counts of the indictment.
Following a hearing, the trial court found that English‘s general demurrers were without basis and denied them. However, the court granted the special demurrers with regard to Counts VII (aggravated assault) and IV (felony murder based on that aggravated assault) and dismissed those charges; it denied the special demurrers as to the remaining counts. In Case No. S02A1808, the State appeals the granting of English‘s special demurrers to Counts IV and VII of the indictment. In Case No. S02X1809, English files a cross-appeal from the denial of his special demurrers to the remaining
Case No. S02A1808
1. Citing Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995), the trial court granted English‘s special demurrers to Counts VII (aggravated assault) and IV (felony murder based on that aggravated assault), after finding that the charges were not sufficiently specific in their description of the manner in which the assault occurred. But this was error because the charges at issue in the present indictment are not fatally flawed as was the aggravated assault charge in Smith v. Hardrick.
The indicted charge of aggravated assault in Smith v. Hardrick accused Hardrick “with the offense of AGGRAVATED ASSAULT for [he] did make an assault upon [the victim] by placing his hands around [her] neck and using his hands to apply pressure to her neck contrary to the law[ ].” Id. at 54. It simply failed to set forth the elements of aggravated assault. See
Count VII in the indictment against English charges that he
did unlawfully make an assault upon the person of Hunter Alexander English, his son, with an object which, when used offensively against a person, is likely to and did result in serious bodily injury; said object being said accused‘s hands; by shaking Hunter Alexander English with his hands and by causing him to be struck by a certain hard surface; in violation of
O.C.G.A. § 16-5-21 .
Count IV accuses English of felony murder while in the commission of aggravated assault as alleged in Count VII.
Thus, Counts IV and VII of the indiсtment against English charge the offense of aggravated assault in the terms and language of
While the indictment against English does not state that his hands were used as deadly weapons, this omission does not render the charge flawed. In Pye v. State, 274 Ga. 839, 841 (4) (561 SE2d 109) (2002), this Court explained that “[t]he specific reference to ‘deadly weapon’ in Smith v. Hardrick must be seen as a general reference to the aggravating circumstance in
Accordingly, Counts IV and VII in the indictment against English were not subject to the special demurrers, and it was error for the trial court to dismiss the charges.
Case No. S02X1809
2. English‘s challenges to the denials of his special demurrers to the remaining counts in the indictment are without merit.
(a) English contends that Count I of the indictmеnt (malice murder) was subject to a special demurrer. It charged English:
with the offense of MALICE MURDER for that the said Adrian English on and between the 25th and 26th days of October, 2001, in the County aforesaid, did unlawfully and with malice aforethought, cause the death of Hunter Alexander English, a human being, by shaking him and by causing his head to be struck by a certain hard surface; in violation of
O.C.G.A. § 16-5-1 , Contrary to the laws of said State.
English complains that the phrases “by shaking him” and “by causing his head to be struck by a cеrtain hard surface” are not clear enough to inform him as to what conduct he must answer for. He argues that shaking a child is a fairly common occurrence among parents, and here, there is no allegation about the manner in which he shook his son; similarly, the count fails to allege in what manner the child‘s head was struck.
But such arguments overlook the fact that the count accuses English of the conduct of shаking his son and causing the child‘s head to be struck “unlawfully and with malice aforethought,” resulting in the child‘s death and in violation of the statutory criminal offense of malice murder. It tracks the language of the statute, names the victim, gives the time and county in which the murder happened, and the methods by which the murder was committed. It is not required that the indictment give every detail of the crime.
The true test of the sufficiency of an indictment to withstand a special demurrer “is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extеnt he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare his defense intelligently and to protect him from double jeopardy.” (Citations, punctuation and emphasis omitted.)
Coalson v. State, 251 Ga. App. 761, 764 (2) (555 SE2d 128) (2001), quoting Snider v. State, 238 Ga. App. 55, 58 (2) (516 SE2d 569) (1999). Count I charging malice murder accomplishes such purpose; it is legally sufficient. See
the offense of CRUELTY TO CHILDREN IN THE FIRST DEGREE for that the said Adrian English on and between the 25th and the 26th days of October, 2001, in the County aforesaid, did maliciously cause Hunter Alexander English, his son and a child under the age of eighteen years, cruel and excessive physical and mental pain by shaking him and by causing his head to be struck by a certain hard surface; in violation of
O.C.G.A. § 16-5-70 , Contrary to the laws of said State.
English contends that the mere allegation of “shaking” is insufficient to allege cruelty to children in the first degree, and that the language “by causing his head to be struck by a certain hard surface” merely states a conclusion. But here again English overlooks the additional language accusing him of shaking his minor child and causing the child‘s head to be struck by а certain hard surface so as to “maliciously cause” the child “cruel and excessive physical and mental pain” in violation of
(c) Finally, English maintains that the trial court should have granted special demurrers with regard to Counts VI and III of the indictment (aggravated battery and felony murder predicated on the aggravated battеry as charged). Count VI of the indict charges English with:
the offense of AGGRAVATED BATTERY for that the said Adrian English on and between the 25th and 26th days of October, 2001, in the County aforesaid, did maliciously cause bodily harm to Hunter Alexander English, his son, by rendering his body and a member thereof useless and by seriously disfiguring his body; in that the said accused did shake Hunter Alexander English and cause his head to be struck by a certain hard surface; resulting in fractures to his skull and hemorrhaging involving his spinаl cord and his eyes; in violation of
O.C.G.A. § 16-5-2 , Contrary to the laws of said State.
Once again, English urges that the language is merely conclusory and does not allege how he committed the crime, that aggravated battery can be committed in many ways and it is necessary that the indictment specifically allege the means and manner by which the aggravated battery was committed. Here, the indictment states that English “did maliciously cause” the bodily harm to his son and details how the aggravated battery was accomplished and the specific injuries that were sustained. It enables English to intelligently prepare a defense and safeguard against double jeopardy. See Division 2 (a), supra.
The trial court did not err by denying English‘s special demurrers to Counts III and VI of the indictment.
3. English was arrested on October 26, 2001, and first filed a motion for bond 94 days later, on January 28, 2002. Thereafter, he was indicted on February 6, 2002. Following a bond hearing, on March 4, 2002, the trial court rejected English‘s assertion that because he was not indicted within 90 days of his arrest, he was enti-tled to bail as a matter of law under
Any person who is arrested for a crime and who is refused bail shall, within 90 days after the date of confinement, be entitled to have the charge against him or her heard by a grand jury having jurisdiction over the accused person. . . . In the event no grand jury considers the charges against the accused person within the 90 day period of confinement . . . the accused shall have bail set upon application to the court.
(Emphasis supplied.) The trial court found that
The trial court refused to apply
First, even though English did not petition for bond within 90 dаys of his arrest and incarceration, the fact that he remained in jail is tantamount to his being “refused bail.”
More significantly, the rules of statutory construction prohibit the phrase “refused bail,” from being considered in isolation, and consequently, to limit application of the mandate of
This Court has confirmed that
Accordingly, we reverse the judgment of the trial court denying bail to English and remand for the setting of a reasonable bond. Rawls v. Hunter at 109.
Judgment reversed in Case No. S02A1808. All the Justices concur. Judgment denying special demurrers affirmed in Case No. S02X1809. All the Justices concur. Judgment denying bail reversed and case remanded in Case No. S02X1809. All the Justices concur, except Fletcher, C. J., and Carley and Thompson, JJ., who dissent.
As to the main appeal, I concur fully in the reversal of the order sustaining the special demurrers to the indictment. With regard to the cross appeal, however, I dissent to the reversal of the denial of English‘s application for mandatory bail.
[a]ny person who is arrested for a crime and who is refused bail shall, within 90 days after the date of confinement, be entitled to have the charge against him or her heard by a grand jury having jurisdiction over the accused person. . . . In the event no grand jury considers the charges against the accused person within the 90 day period of confinement . . ., the accused shall have bail set upon application to the court. (Emphasis supplied.)
The majority holds that
[t]he language of the final sentence of the statute . . . does not make a distinction between those detainees who are “refused bail” and those who are “without bail“; instead it states an entitlement to bail for the accused person who has not been indicted within 90 days of incarceration.
Majority opinion, p. 348. I disagree, because that interpretation mistakenly focuses on the last sentence in isolation, rather than in its proper context as an element of the statutory provision as a whole. When the code section is considered in its entirety, its primary purpose clearly is not to provide for mandatory bail for any defendant who was not indicted within 90 days of his arrest. Instead, it is intended to put the State on notice that, unless it indicts the arrestee by a date certain, it cannot thereafter contest his right to bail. The language of the statute “is unambiguous. If the [S]tate refuses bail to an incarcerated person, then the [S]tate must presеnt its case to a grand jury for indictment within 90 days. If the [S]tate fails to do this, then bail is mandatory. [Cit.]” (Emphasis supplied.) Rawls v. Hunter, 267 Ga. 109 (1) (475 SE2d 609) (1996) (defendant twice sought bail, and it was refused both times). Thus, only an accused who actively sought and was “refused bail” within 90 days of his arrest is entitled to mandatory bail pursuant to the last sentence of
According to the majority, “the fact [that English] remained in jail is tantamount to his being ‘refused bail.‘” Majority opinion, p. 348. However, an arrestee obviously cannot be “refusеd bail” unless and until he requests it. The burden is on the accused to seek bail and, if he remains mute and fails to do so, the State is not put on notice that it must indict him within 90 days of his arrest or concede his right to bail. Where, as here, the defendant is charged with an offense bailable only before a superior court, he “may petition the superior court requesting that [he] be released on bail. The court shall notify the district attorney and set a date for a hearing within ten days after receipt of such petition.”
The majority mistakenly relies on Burke v. State, 234 Ga. 512, 516 (5) (216 SE2d 812) (1975) for a contrary construction of the statute. All Burke holds is that, “[a]fter ninety days of confinement without bail and without indictment, the mandate of [OCGA § 17-7-50] is that bail must be set by the trial judge.” (Emphasis supplied.) Burke v. State, supra at 517 (5). The majority construes “without bail” as meaning “regardless of whether bail was earlier requested and refused.” Majority opinion, p. 349. However, nothing compels the conclusion that Burke employed the phrase in that sense. “Without bail” does not imply that a request for same either was or was not made.
Moreover, Rawls v. Hunter, supra at 109 (1), holds:
The record in this case is clear that [the defendant] was incarcerated for more than 90 days without having a grand jury hear the charges against him and that he twice sought and was refused bail. When [he] made his application for bail on the 91st day of his incarceration, the trial court had no choice but to set a reasonable bond. (Emphasis supplied.)
Rawls certainly constitutes implicit authority for the proposition that a prior refused request for bail is required. While it could be argued that Burke represents implicit authority for the contrary proposition, Rawls, as the more recent decision, would necessarily control this case. Hall v. Hopper, 234 Ga. 625, 629 (3) (216 SE2d 839) (1975).
Under the majority‘s expansive construction of
I am authorized to state that Justice Thompson joins in this opinion.
DECIDED MARCH 24, 2003.
Kenneth W. Mauldin, District Attorney, Edward H. Brumby, Jr., Assistant District Attorney, for appellant.
Russell C. Gabriel, for appellee.