Home/Supreme Court of Georgia/Hopper v. Hampton

Hopper v. Hampton

260 S.E.2d 73, 244 Ga. 361, 1979 Ga. LEXIS 1232
CourtSupreme Court of Georgia
DecidedSeptember 26, 1979
Docket35177
StatusPublished
Cited by21 cases

This text of 260 S.E.2d 73 (Hopper v. Hampton) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hopper v. Hampton, 260 S.E.2d 73, 244 Ga. 361, 1979 Ga. LEXIS 1232 (Ga. 1979).

Opinion

Undercofler, Presiding Justice.

Al W. Hampton was tried and convicted for burglary and aggravated assault, and sentenced to serve 15 years and 12 months concurrently, respectively. He filed a petition for habeas corpus alleging that the burglary indictment was fatally defective in failing to allege specifically the felony, he "without authority, and with intent to commit a felony therein, entered the dwelling house . . .” to commit. The habeas court granted his petition and the state, through the warden, appeals. We reverse.

*362 Submitted August 30, 1979 Decided September 26, 1979. Arthur K. Bolton, Attorney General, G. Stephen Parker, Assistant Attorney General, for appellant. Thomas J. Killeen, for appellee.

Hampton relies on State v. Lockhart, 24 Ga. 420 (1858), and Ealey v. State, 136 Ga. App. 292 (221 SE2d 50) (1975), holding that such specificity is necessary. Neither case, however, is a habeas corpus case. In Lockhart, supra, the challenge to the indictment was made by the guarantor on the defendant’s appearance bond and in Ealey, supra, on direct appeal. These facts distinguish these cases.

The general rule is that substantive defects, such as the indictment fails to allege conduct which constitutes a crime, are cognizable on habeas corpus because the entire proceedings were void ab initio. E.g. McCain v. Smith, 221 Ga. 353 (144 SE2d 522) (1965). Where, on the other hand, the defect is merely one of form, the defect is waived if not raised prior to trial. E.g. Hopper v. Kemp, 236 Ga. 615 (225 SE2d 15) (1976) (names of grand jurors not listed); Tolever v. Smith, 224 Ga. 270 (161 SE2d 266) (1968) (date offense committed not shown). We find that the requirement that the felony be specified falls in the latter category.

As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient. Byers v. State, 236 Ga. 599 (225 SE2d 26) (1976); Berger v. United States, 295 U. S. 78 (55 SC 629, 79 LE 1314) (1934). We find these criteria are met here and hold the indictment sufficient. The habeas court erred in ruling otherwise.

Judgment reversed.

All the Justices concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Henderson v. Hames
697 S.E.2d 798 (Supreme Court of Georgia, 2010)
Polk v. State
620 S.E.2d 857 (Court of Appeals of Georgia, 2005)
Wright v. State
596 S.E.2d 587 (Supreme Court of Georgia, 2004)
State v. Grant
561 S.E.2d 94 (Supreme Court of Georgia, 2002)
Livery v. State
503 S.E.2d 914 (Court of Appeals of Georgia, 1998)
Grant v. State
488 S.E.2d 79 (Court of Appeals of Georgia, 1997)
Jordan v. State
470 S.E.2d 242 (Court of Appeals of Georgia, 1996)
Everett v. State
454 S.E.2d 620 (Court of Appeals of Georgia, 1995)
State v. Leach
766 P.2d 1116 (Court of Appeals of Washington, 1989)
Baxter v. State
335 S.E.2d 607 (Court of Appeals of Georgia, 1985)
Peters v. State
333 S.E.2d 436 (Court of Appeals of Georgia, 1985)
State v. Greene
320 S.E.2d 183 (Court of Appeals of Georgia, 1984)
Moran v. State
318 S.E.2d 716 (Court of Appeals of Georgia, 1984)
Williams v. State
299 S.E.2d 402 (Court of Appeals of Georgia, 1983)
Chappell v. State
296 S.E.2d 629 (Court of Appeals of Georgia, 1982)
Phillips v. State
291 S.E.2d 776 (Court of Appeals of Georgia, 1982)
Osborn v. State
291 S.E.2d 22 (Court of Appeals of Georgia, 1982)
Carter v. State
270 S.E.2d 233 (Court of Appeals of Georgia, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
260 S.E.2d 73, 244 Ga. 361, 1979 Ga. LEXIS 1232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopper-v-hampton-ga-1979.