The defendant, John W. Greene, Clerk of the Gwinnett County Recorder’s Court, was indicted for the offense of Falsifying Public Records, six counts, and one count of Violation of Oath by Public Officer. He was acquitted of the six counts alleging falsification of public records and the trial court sustained a special demurrer to the count alleging he violated his oath of office. The State brings this appeal from the court’s ruling sustaining the special demurrer. Held:
Defendant’s special demurrer alleged that this count “fails to allege any crime of violation of the laws of Georgia” in that it alleged only that he violated his oath by not collecting costs, fines, and forfeitures of convicted and sentenced defendants but merely placed their records in a file marked “To Be Paid.” Defendant argued that the indictment did not specify what action he failed to take or what duty he refused to exercise or what powers he had to collect such costs, fines, and forfeitures. The trial court ruled that defendant’s demurrer alleging that this count “does not constitute a crime under the laws of this State” was sustained as he agreed with “the contentions” of the defendant.
“A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.”
Bramblett v. State,
The indictment alleged that defendant “committed the offense of VIOLATION OF OATH BY PUBLIC OFFICER” in. that he “wilfully and intentionally violated the terms of his oath to faithfully administer and discharge the duties of his office ... in that he did not collect all costs, fines and forfeitures and remit the same in a timely manner *330 as required by law . . . and that this failure to collect costs, fines and forfeitures continued from 1981 until February 3, 1983 and further that cases were placed in a ‘To Be Paid’ file and action was not taken when the costs, fines and forfeitures were not paid as ordered and that the duties of the Clerk under the law was to collect said costs, fines and forfeitures and he did not do in the following cases numbered one (1) through four hundred ninety-one (491) . . . and that the failure to collect costs, fines and forfeitures defrauded the citizens of Gwinnett County and the Board of Commissioners of Gwinnett County in that eighty thousand six hundred forty-six dollars ($80,646.00) in fines, costs and forfeitures were not collected in accordance with law, contrary to the laws of said State, the good order, peace and dignity thereof.”
The oath taken by the Clerk of the Recorder’s Court provides that he shall “faithfully administer and discharge the duties of [his] respective office [] in accordance with the Constitution and laws of the State of Georgia and the ordinances of Gwinnett County.” Ga. L. 1972, p. 3129. His duties “shall be to keep a record of all proceedings of said court, to collect all costs, fines and forfeitures, and to remit same by the 15th day of the following month to the Director of Finance of Gwinnett County . . .” Ga. L. 1972, p. 3128. In furtherance of his duties he was “authorized and empowered to issue summons, subpoenas, rules to forfeit bonds, and such other similar rules as may be by law authorized.” Id.
“An indictment is required to set forth the elements of the offense sought to be charged. ‘The true test of the sufficiency of an indictment 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 extent he may plead a former acquittal or conviction.” ’ ” United States v. Debrow,
A second test frequently cited by this court is that an indictment is insufficient to withstand a demurrer if all of the facts which the indictment charges can be admitted and still the accused is innocent, but the indictment is sufficient, if taking the facts alleged as proven, the guilt of the accused follows as a legal conclusion.
Gower v. State,
Judgment reversed.