Boatwright v. State

105 S.E. 381, 26 Ga. App. 67, 1920 Ga. App. LEXIS 277

Opinion

Bloodworth, J.

The demurrer in this case alleged that the indictment contained but one count, that in that count the accused was charged with committing a felony and a misdemeanor, and that “ a felony and a misdemeanor cannot be charged in the same count in an indictment.” “Demurrer, being a critic, should itself be free from imperfection. ” This demurrer did not point out what specific felony and what specific misdemeanor was charged in the indictment; did not “put its finger on the exact point of weakness.” In Field v. State, 126 Ga. 571 (1), (55 S. E. 502), it was held: “ A demurrer to an indictment on the ground that it charges the accused with two distinct offenses of an entirely different nature in one and the same count is too indefinite to be considered, unless the demurrer discloses to what offenses of a dissimilar nature reference is intended to he made. ” In Wells v. State, 118 Ga. 556 (45 S. E. 443), it was held: “A demurrer to an indictment, which alleges that separate and distinct offenses, for which separate and distinct penalties are provided, are improperly joined therein, without indicating what such separate and distinct offenses are, presents no question for determination by the court.” See also Gatlin v. State, 18 Ga. App. 9 (6) (89 S. E. 345); Sowell v. State, 126 Ga. 105 (1) (54 S. E. 196).

Under these rulings the demurrer in this case was fatally defective, and was properly overruled.

Judgment affirmed.

Broyles, C. J., and Luke, J., concur.