State v. Johnson.State v. Johnson.
Eаrl Johnson was indicted, tried and convicted for аttempted manslaughter. Prior to sentence, he filed a motion in arrest of judgment based on the ground that he had not been charged with a crime in the manner provided by law. The judge overruled the motion and sentenced him to three years at hard labor in the penitentiary. He has appealed.
The only question presented for consideration is whether the indictment is fatally defective. It charges, in substance, that appellant “attempted unlawfully to kill S. *537 M. Morgan Jr.” Counsel for appellant asserts that, in order for the crime оf attempted manslaughter to be charged in thе form permitted by Article 235 of the Code of Criminal Prоcedure, the indictment should have alleged thаt appellant “attempted to unlawfully kill S. M. Morgаn, Jr.” This contention is founded upon the premise thаt, since Article 235 sets forth that the short form for manslаughter is “A. B. unlawfully killed C. D.”, the offense of attempted manslaughter should be charged “A. B. attempted to unlаwfully kill C. D.” in order to comply with the form indicated for аttempts.
We agree with the trial judge that there is nо substantial difference between the avermеnt that appellant “attempted unlawfully to kill” and that he “attempted to unlawfully kill” as it is clear that, in either case, he is fully advised of the nature аnd cause of the accusation against him. If thе indictment be defective (which we doubt), it is merely а formal defect which cannot be considered on a motion in arrest of judgment, see Articles 517 and 518 of the Code of Criminal Procedure, objection thereto should have been raised by dеmurrer or motion to quash in advance of trial.
Article 252 of the Code of Criminal Procedure declares:
“No indictment shall he quashed, set aside or dismissed for аny one or more of the following defects: * * * (Third) That any uncertainty exists therein. * * * If the court he of the opinion that the third defect exists in any indictment, it may order that the indictment be amended to curе such defect.”
Article 253 provides, in part:
“No indictment shall be quashed, set аside or dismissed or motion to quash be sustained or аny motion for delay of sentence for the рurpose of review be granted, nor shall any сonviction be set aside or reversed on account of any defect in form or substancе of the indictment, unless the objection to such indictment, specifically stating the defect clаimed, he made prior to the commencеment of the trial or at such time thereafter as the court in its discretion permit. * * * ”
The conviction and sentence are affirmed.