An allegation in an indictment that is wholly unnecessary to constitute the offense charged is mere surplusage.
DECIDED MAY 22, 1943. REHEARING DENIED MAY 29, 1943.
The indictment in this case charged that Robert F. Wood was guilty of "the offense of assault," for that he, "on the 28th day of July, 1942, in the county aforesaid [Bulloch], unlawfully and with force and arms, did then and there attempt to commit a violent injury upon one Elvin Mitchell by then and there releasing in the presence of the said Elvin Mitchell some strong liquid substance, the exact name of which is unknown to the grand jurors, and thereby seriously burning and causing severe pain to the eyes of the said Elvin Mitchell, contrary to the laws of said State, the good
order, peace and dignity thereof." The following demurrer was interposed: 1st. The indictment charges no offense or violation of any law. 2nd. The indictment is subject to special demurrer in that the name of the gas alleged to have burned Elvin Mitchell is not set forth therein, and the mere allegation that its name is not known to the grand jurors is not sufficient compliance with the law, "and does not put the defendant on notice with what he is charged." 3d. The first part of the indictment sets out that the defendant "attempted" to commit a violent injury upon Elvin Mitchell, "and proceeds to state that the manner of such attempt was the releasing of certain strong gas which seriously burned said Mitchell. The allegation that an attempt was made, and the next allegation that a serious injury was actually perpetrated on said Mitchell are repugnant to each other and do not support each other. The language, `by then and there releasing in the presence of the said Elvin Mitchell some strong liquid substance, the exact name of which is unknown to the grand jurors, and thereby seriously burning and causing severe pain to the eyes of said Elvin Mitchell,' should be stricken from the indictment because it is repugnant to the preceding portion which alleges an attempt. Said language alleges a consummation of an act, and not an attempt, and is not supported by the allegation that an `attempt' was made to commit a violent injury." The demurrer was overruled, and that judgment was assigned as error in a direct bill of exceptions.
While the offense charged was denominated in the indictment as an "assault," the facts set forth therein show that it was actually an assault and battery, and it is well settled that in such a case the facts and not the denomination determine what particular offense is charged. And it is conceded in the brief of counsel for the accused that the facts set forth in the indictment show "a completed battery." The indictment was not subject to special demurrer because it failed to give the exact name of the gas which the defendant was alleged to have released. Under the facts of the case, as set out in the indictment, the allegation that the name of the gas was not known to the grand jurors was sufficient. Nor was the indictment subject to the general demurrer. And the language
in that part of the indictment which charged an
attempt to commit an injury upon Elvin Mitchell was mere surplusage and should be treated as such. In Black's Law Dictionary surplusage in pleading is thus defined: "Allegation of matter wholly foreign and impertinent to the cause. All matter beyond the circumstances
necessary to constitute the action." (Italics ours.) Without the allegation as to an attempt, the indictment sets forth the offense of assault and battery, and upon the trial, if the evidence failed to show an assault and battery but showed an attempt to commit such offense, the defendant could be convicted of such attempt. Therefore the allegation of such attempt was entirely unnecessary in the indictment and was mere surplusage. The cases cited in behalf of the defendant which hold that where an indictment sets out an offense as committed in a particular manner the proof must support the allegations thus made, even though the offense be stated with unnecessary particularity, are not applicable to the facts of this case.
Judgment affirmed. Gardner, J., concurs.
"An assault is an attempt to commit a violent injury on the person of another." Code, § 26-1401. "Battery is the unlawful beating of another, and is a misdemeanor." Code, § 26-1408. "An indictment for assault and battery, which charges that the accused made an assault [or attempt to commit a violent injury] upon a named person and him did unlawfully beat, is sufficiently specific in reference to the assault and beating, though it does not allege what acts constituted the assault nor in what manner the beating was done."Sims v. State, 118 Ga. 761" court="Ga." date_filed="1903-10-24" href="https://app.midpage.ai/document/sims-v-state-5572835?utm_source=webapp" opinion_id="5572835">118 Ga. 761 (45 S.E. 621" court="Ga." date_filed="1903-10-29" href="https://app.midpage.ai/document/walker-v-state-5572840?utm_source=webapp" opinion_id="5572840">45 S.E. 621). If, as in the instant case, the pleader, instead of using the word "assault," substitutes therefore the identical words of the Code in the definition of an assault, as shown by the brackets above, to wit, "attempt to commit a violent injury" upon a named person, I think the pleader is, nevertheless, but following the form of indictment for an assault and battery which was followed by our criminal pleaders in the early history of this State and which has been uniformly followed to the present time, which is that the accused, on a given date in a named county, "then and there unlawfully and with force and arms, in and upon [a named person], in the peace of said State then and there being, did make an assault, and him, the said [named person], unlawfully and with force and arms did beat, contrary to the laws of said State."Sims v. State, supra.
While the indictment misnames the crime charged as an assault, when it should have been named an assault and battery, yet the charging part of the indictment, which alleges the facts that constituted the essential elements of an assault and battery, is in proper form, as it follows common-law precedents as well as precedents which have been approved in this country for more than one hundred years. Sims v. State, supra.
I think the charging part of the indictment, which seeks to set out the essential elements of the offense of assault and battery, is in proper form just as it stands.
ON MOTION FOR REHEARING.
Counsel move for a rehearing of this case and a reconsideration of our holding that "The indictment was not subject to special demurrer because it failed to give the exact name of the gas which the defendant was alleged to have released. Under the facts of the case, as set out in the indictment, the allegation that the name of the gas was not known to the grand jurors was sufficient." And counsel cite in support of their motion
Walker v.
State, 124 Ga. 440" court="Ga." date_filed="1905-12-21" href="https://app.midpage.ai/document/walker-v-state-5574652?utm_source=webapp" opinion_id="5574652">124 Ga. 440 (
52 S.E. 738" court="Ga." date_filed="1905-12-21" href="https://app.midpage.ai/document/walker-v-state-5574652?utm_source=webapp" opinion_id="5574652">52 S.E. 738), with the request that this court differentiate that case from
Sims
v.
State, 118 Ga. 761" court="Ga." date_filed="1903-10-24" href="https://app.midpage.ai/document/sims-v-state-5572835?utm_source=webapp" opinion_id="5572835">118 Ga. 761 (supra), cited by Judge MacIntyre in his specially concurring opinion. The opinion in the
Walker
case was based on
Monday's case,
32 Ga. 672" court="Ga." date_filed="1861-06-15" href="https://app.midpage.ai/document/monday-v-state-5554395?utm_source=webapp" opinion_id="5554395">32 Ga. 672,
Johnson's
case,
92 Ga. 38 (
17 S.E. 974" court="Ga." date_filed="1893-05-08" href="https://app.midpage.ai/document/johnson-v-state-5565128?utm_source=webapp" opinion_id="5565128">17 S.E. 974), and
Johnson's case,
90 Ga. 441" court="Ga." date_filed="1892-10-08" href="https://app.midpage.ai/document/johnson-v-state-5564850?utm_source=webapp" opinion_id="5564850">90 Ga. 441
(
16 S.E. 92" court="Ga." date_filed="1892-10-08" href="https://app.midpage.ai/document/johnson-v-state-5564850?utm_source=webapp" opinion_id="5564850">16 S.E. 92). In each of those four cases the accused was indicted for the offense of assault with intent to murder, while in the
Sims case and the instant case the defendant was indicted for an assault and battery only, and Cobb, J., speaking for a united court in the
Sims case, said: "This from 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 [citing authorities]. Certainly an indictment which would be sufficient to withstand the scrutiny of a common-law pleader ought to be held sufficiently technical in the twentieth century. The rules laid down by Mr. Justice Lumpkin in
Johnson v.
State, 90 Ga. 441
(supra), 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."
Rehearing denied. MacIntyre and Gardner, JJ., concur.