Smith v. State

87 S.E. 846, 17 Ga. App. 612, 1916 Ga. App. LEXIS 811

Opinion

Wade, J.

1. Since the motion in arrest of judgment complains only that “the accusation on which the defendant was tried and convicted was never filed in the office of the clerk of the city court of LaGrange,” and since the motion does not relate to any matter affecting the real- merits of the offense charged, the trial judge did not err in refusing to sustain the motion. Penal Code, § 980. See also Gilmore v. State, 118 Ga. 299 (45 S. E. 226). Such a motion must be predicated upon some defect, not amendable, which appears on the face of the record or pleadings. Leffler v. Union Compress Co., 121 Ga. 40 (48 S. E. 710). See also Huger v. Cunningham, 126 Ga. 684 (7), 692 (56 S. E. 64); Gilbert v. State, 17 Ga. App. 143 (86 S. E. 415). Accusations, unlike indictments, may be amended. Goldsmith v. State, 2 Ga. App. 283 (58 S. E. 486).

(a) One object of arraignment is to afford opportunity to object to an accusation or indictment before pleading to the merits; and, if the plaintiff in error had desired to interpose any objection to the accusation, he should have done so by a plea in abatement or a motion to quash.

2. There was some evidence to authorize the verdict returned, and the trial judge did not err in overruling the motion for a new trial.

Judgment affirmed.

Russell, C. J., dissents.