Appellant Johnny Stinson appeals from the judgment of conviction entered after a jury found him guilty of the felony murder of his girlfriend, Rosemary Reynolds. 1
1. The State presented evidence which established the victim was killed by a single gunshot wound to the back of her head. Due to the gunpowder stippling surrounding the entrance wound, a forensic pathologist estimated the gun was fired from a distance of three-six
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inches from the victim’s scalp. After seeing the path the bullet took upon entering the victim’s head, the forensic pathologist determined the bullet was fired into the five-foot, nine-inch victim in an “acutely downward” direction. Appellant, who is five-feet, five inches tall, told the first police officer who came to the scene that the victim had shot herself; he told other investigating officers he and the victim had had a verbal altercation which had been followed by a fight for possession of a pistol, and the victim had been shot during the struggle. Appellant later amended his statement to say he had gained possession of the gun during the struggle and it had gone off accidentally as the victim spun away from him. The evidence was sufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that appellant was guilty of felony murder while committing an aggravated assault.
Jackson v. Virginia,
2. In his sole enumeration of error, appellant alleges the felony murder indictment upon which he was tried did not satisfy the requirements of due process since it did not allege the essential elements of the predicate offense. Because of this purported deficiency, appellant contends his felony murder conviction must be reversed.
[D]ue process of law requires that an indictment “put the defendant on notice of the crimes with which he is charged and against which he must defend.” [Cit.] An indictment apprises a defendant that he may be convicted of the crime named in the indictment, of a crime included as a matter of law in the crime named, and of a crime established by the facts alleged in the indictment regarding how the crime named was committed. [Cit.]
Borders v. State,
*179 The indictment returned against appellant in 1999 charged him with malice murder, felony murder during the commission of aggravated assault, and possession of a firearm during the commission of a crime. The felony murder count did not contain the essential elements of the predicate offense of aggravated assault and the indictment did not contain a separate count charging appellant with aggravated assault; however, the count charging appellant with malice murder set forth sufficient facts to put appellant on notice he was accused of the compound offense of felony murder with aggravated assault as the predicate offense. 2 Borders v. State, supra. Thus, the 1999 indictment satisfied due process.
Appellant points out he was not re-tried in 2001 on the entire 1999 indictment, but on a redacted version of that indictment which showed only the felony murder count since the 1999 jury that found him guilty of felony murder did not return verdicts on the malice murder and aggravated assault counts. Appellant contends the Court’s review should be limited to the redacted indictment containing only the felony murder count. The State maintains appellant’s challenge to the indictment on which he was tried is a special demurrer which has been waived because he first raised it on motion for new trial and did not assert the challenge before arraignment. See
Smith v. State,
Assuming without deciding that our review of appellant’s allegation that he was denied due process is limited to the one-count redacted indictment, we conclude that the one-count indictment did not deprive appellant of due process. If an accused can admit to the allegations of a crime and still be not guilty of a crime, the indictment is insufficient and the conviction void.
Smith v. Hardrick,
Appellant’s contention that the felony murder indictment was deficient because it did not contain all the essential elements of the underlying crime of aggravated assault is, in essence, a special demurrer
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seeking greater specificity with regard to the predicate felony. We agree with the State that appellant’s failure to file his special demurrer seeking additional information before pleading not guilty to the indictment constitutes a waiver of his right to be tried on a perfect indictment.
Totten v. State,
Judgment affirmed.
Notes
The victim was killed on April 19,1999, and appellant was arrested the same day. During the June 1999 term of court, a grand jury in Muscogee County returned a true hill of indictment charging appellant with malice murder, felony murder with aggravated assault as the predicate offense, and possession of a firearm during the commission of a crime. Appellant was tried on that indictment in November 1999 and the jury returned a guilty verdict on the felony murder charge. The felony murder conviction was reversed on appeal to this Court in March 2001 due to an incomplete charge on the defense of accident.
Stinson v. State,
The felony murder count charged appellant with having caused the death of the victim “while in the commission of a felony, to wit: aggravated assault....” The malice murder count charged appellant with having caused the victim’s death “by shooting her with a pistol” with malice aforethought.
“A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.”
State v. Eubanks,