State v. English

578 S.E.2d 413, 276 Ga. 343
CourtSupreme Court of Georgia
DecidedMarch 24, 2003
DocketS02A1808, S02X1809
StatusPublished
Cited by39 cases

This text of 578 S.E.2d 413 (State v. English) 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
State v. English, 578 S.E.2d 413, 276 Ga. 343 (Ga. 2003).

Opinions

Hines, Justice.

Adrian English was charged in a seven-count indictment in connection with the death of his infant son. English was charged with: Count I — malice murder; Count II — felony murder while in the commission of cruelty to children in the first degree; Count III — felony murder while in the commission of aggravated battery; Count IV — felony murder while in the commission of aggravated assault; Count V — cruelty to children in the first degree; Count VI — aggravated battery; and Count VII — aggravated assault. English filed general demurrers to Counts III, IV, VI, and VII and special demurrers with regard to all counts of the indictment.

Following a hearing, the trial court found that English’s general demurrers were without basis and denied them. However, the court granted the special demurrers with regard to Counts VII (aggravated assault) and IV (felony murder based on that aggravated assault) and dismissed those charges; it denied the special demurrers as to the remaining counts. In Case No. S02A1808, the State appeals the granting of English’s special demurrers to Counts IV and VII of the indictment. In Case No. S02X1809, English files a cross-appeal from the denial of his special demurrers to the remaining counts in the indictment and from the trial court’s denial of bail.

Case No. S02A1808

1. Citing Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995), the trial court granted English’s special demurrers to Counts VII (aggravated assault) and IV (felony murder based on that aggravated assault), after finding that the charges were not sufficiently specific in their description of the manner in which the assault occurred. But this was error because the charges at issue in the present indictment are not fatally flawed as was the aggravated assault charge in Smith v. Hardrick.

OCGA § 17-7-54, setting forth the form of indictment by the grand jury, provides that an indictment is to be deemed “sufficiently technical and correct” if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may be easily understood by the jury.” And as this Court stated in Smith v. Hardrick, the fundamental Sixth Amendment principle that criminal defendants must be informed of the nature and cause of the charges against them requires that “a criminal indictment which does not recite language from the Code must allege every essential element of the crime charged,” and “each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and [344]*344distinctly set out the crime charged in that count.” Id. at 54-55 (1).

The indicted charge of aggravated assault in Smith v. Hardrick accused Hardrick “with the offense of AGGRAVATED ASSAULT for [he] did make an assault upon [the victim] by placing his hands around [her] neck and using his hands to apply pressure to her neck contrary to the law[ ].” Id. at 54. It simply failed to set forth the elements of aggravated assault. See OCGA § 16-5-21.1 That is, it did not state whether Hardrick “placed his hands around the victim’s neck in an attempt to use them as a deadly weapon, or in an attempt to rape, rob or murder the victim.” Smith v. Hardrick at 56 (3). Nor did it indicate that Hardrick intended to inflict a violent injury or place the victim in reasonable apprehension of being violently injured. Id. Thus, if Hardrick pled guilty to the allegations in the indictment, he would not be admitting an aggravated assault. Id. That is not the situation with regard to the allegation of aggravated assault by English against his infant son.

Count VII in the indictment against English charges that he

did unlawfully make an assault upon the person of Hunter Alexander English, his son, with an object which, when used offensively against a person, is likely to and did result in serious bodily injury; said object being said accused’s hands; by shaking Hunter Alexander English with his hands and by causing him to be struck by a certain hard surface; in violation of O.C.G.A. § 16-5-21.

Count IV accuses English of felony murder while in the commission of aggravated assault as alleged in Count VII.

Thus, Counts IV and VII of the indictment against English charge the offense of aggravated assault in the terms and language of OCGA § 16-5-21 and state the offense so plainly that a jury might easily understand the nature of the aggravated assault charged. OCGA § 17-7-54. English argues that he is accused of using his hands in a manner which is not, without additional qualification, unlawful, i.e., that a father shaking his infant son is not per se assaultive behavior or otherwise unlawful; he also urges that the language “by causing [Hunter Alexander English] to be struck by a cer[345]*345tain hard surface” renders the charge of aggravated assault insufficient because it does not allege the use of any object at all for the assault, or what the “hard surface” was, or what part of the child’s body was struck. But English’s arguments overlook the fact that the counts allege that English used his hands as an offensive object, resulting in serious bodily injury to his son. See OCGA § 16-5-21 (a) (2). The counts then elaborate upon the manner in which English used his hands as an offensive object, that is, “by shaking [his infant son] with his hands and by causing [the baby] to be struck by a certain hard surface.” Compare D’Auria v. State, 270 Ga. 499 (512 SE2d 266) (1999).

While the indictment against English does not state that his hands were used as deadly weapons, this omission does not render the charge flawed. In Pye v. State, 274 Ga. 839, 841 (4) (561 SE2d 109) (2002), this Court explained that “[t]he specific reference to ‘deadly weapon’ in Smith v. Hardrick must be seen as a general reference to the aggravating circumstance in OCGA § 16-5-21 (a) (2), which also includes ‘any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .’” (Footnote omitted.) The indictment in this case sets forth both the unlawful assault and the aggravating circumstance. Moreover, it was unnecessary to allege apprehension by the victim as “apprehension is not an essential element of an assault in which it is alleged that the defendant attempted to commit a violent injury upon the victim.” Tucker v. State, 245 Ga. App. 551, 553 (1) (538 SE2d 458) (2000).

Accordingly, Counts IV and VII in the indictment against English were not subject to the special demurrers, and it was error for the trial court to dismiss the charges.

Case No. S02X1809

2.

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Bluebook (online)
578 S.E.2d 413, 276 Ga. 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-english-ga-2003.