State v. Green

218 S.E.2d 456, 135 Ga. App. 622, 1975 Ga. App. LEXIS 1761

• Court: Court of Appeals of Georgia
• Decided: September 2, 1975
• Docket: 50888
• Status: Published

Opinions

Stolz, Judge.

The state appeals from the judgment of the trial court sustaining the defendant’s special demurrer to the following burglary indictment: "for that said accused, in the County of Columbia and State of Georgia, on the 25th day of January, 1975, unlawfully . . . did enter the building of Darvin Byrd, the owner thereof.”

The special demurrer urged that the indictment did not "set out the place of the alleged crime with the specificity required by law, so as to enable defendant to prepare his defense.” Held:

Code § 27-701 provides, "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury.” "The requisite of a good indictment, as to form, is that the offense with which the defendant is charged be so stated as to give him ample opportunity to prepare his defense.” Allen v. State, 120 Ga. App. 533, 534 (171 SE2d ).

Submitted July 1, 1975 Decided September 2, 1975. Richard E. Allen, District Attorney, Ashley Royal, Assistant District Attorney, for appellant. Harrison, Roper & Garrett, J. David Roper, for appellee.

"[I]n passing upon the demurrer it is only necessary to inquire whether the case is one which falls under the general rule, where the language of the code is sufficient to inform the defendant of the nature of the charge against him, and of the transaction in which he is alleged to have violated the law, or whether it comes within the exception, where there must be an amplified statement of details of the transaction, so as not to deprive the defendant of the substantial right of being informed of the nature of the charge against him, and of having an opportunity to defend against it "Dean v. State, 9 Ga. App. 303, 304 (71 SE 597).

In this case the indictment charges the defendant with burglarizing a building of Darvin Byrd located in Columbia County, Georgia, but it failed to specify the location of the building in question. This is not sufficient. To illustrate, an indictment alleging burglary of a building of Rich’s, Inc., in Fulton County, Georgia, would obviously be insufficient, as would one charging the theft of an automobile belonging to one of the national automobile rental companies. The defendant is presumed innocent when indicted and must rely upon the information contained in the indictment in preparing his defense.

Judgment affirmed.

Deen, P. J., concurs. Evans, J., concurs specially.