Gravitt v. State

136 S.E. 829, 36 Ga. App. 301, 1927 Ga. App. LEXIS 35

Opinion

Broyles, C. J.

1. “Every defendant has the right to be tried upon an indictment or accusation perfect in form and substance, but this right, like every other (even the right -of trial itself), may be waived. One who waives his right to be tried upon - an indictment perfect in form as well as substance, and takes his chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless those defects are so great that the accusation is absolutely void.” Lanier v. State, 5 Ga. App. 472 (2) (63 S. E. 536).

2. Where an indictment upon which one has been convicted is so defective as to be absolutely void, a motion to set aside the judgment is not the appropriate remedy. McDonald v. State, 126 Ga. 536 (55 S. E. 235).

3. Conceding (but not deciding) that the indictment in the instant case, charging the accused with an attempt to commit larceny of an automobile, was void, for the reason that it failed to allege that the automobile was of any value, the motion to set aside the judgment of conviction was not the appropriate remedy, and the court properly denied the motion.

{a) The fact that the trial court gave another reason for denying the motion is immaterial. It is well settled by repeated rulings of the Supreme Court and of this court that where a judgment of the trial court, excepted to, is, for any reason, correct, the judgment will be affirmed by the reviewing court, even if the reason given by the trial court for its judgment be an erroneous one.

Judgment affirmed.

Luke, J., concurs. Bloodworth, J., absent on account of illness.