Thomas v. State

71 Ga. 44

• Court: Supreme Court of Georgia
• Decided: November 6, 1883
• Status: Published

Opinion

Jackson, Chief Justice.

The indictment is in the following words, after the usual heading of the county and state and names of the grand jurors:

“lathe name and behalf of the citizens of Georgia, charge and accuse John Thomas, of the county and state- aforesaid, with the offence of murder; for'that the said John Thomas, in the county aforesaid, on the 25th day of December, in the year of our Lord eighteen hundred and eighty-two, with force and arms did, unlawfully and with malice aforethought, - kill one'Lindsey "Weaver, by shooting the said Lindsey Weaver in the breast with a pistol, contrary,” etc.

To this indictment defendant demurred, which was sustained and about to be entered of record and the bill of indictment quashed, when defendant waived its insuffk ciency and went to trial by his own consent thereunder. Pending the trial, sundry objections were made to the introduction of evidence on grounds arising out of the insufficiency of the allegations in the indictment as alleged-in the demurrer, which the court overruled, and the defendant having been convicted of murder, moved for a new trial on the ground of error by the court in so ruling.

Subsequently the motion for a new trial was amended by adding that on the face of the indictment no jurisdiction was shown to try the case, and that it does not show when or where the crime was committed; and for these reasons a new trial should have been granted.

1. We see no error in overruling the motion on the ground that the verdict is against the evidence. There is ample testimony to sustain it.

2. We see none on the ground made in respect to letting in the evidence. If there were defects in setting out the offence with technical certainty, the defendant waived them, and of his own choice went to trial on the indictment; and on the trial was estopped from making points which the judge sustained'on demurrer and which the solicitor general was in the act of putting on record and quashing the indictment when the waiver was made. It is true that, even in a civil case, pleadings cannot be waived, but in all cases, merely defective pleadings being before the court, defects may be waived. 28 Ga., 576; 43 Ib., 218.

3. Nor do we see any error in overruling the motion on the want of jurisdiction as alleged to be apparent on the bill of exceptions, because the want of jurisdiction is not apparent thereon. It is distinctly alleged that “ the said John Thomas, in the county aforesaid, on the 25th day of December, in the year of our Lord eighteen hundred and eighty-two, with force and arms,” etc., killed the deceased. What county aforesaid ? Campbell county is the only county named before, anywhere in the indictment, and that is named in the beginning thereof, thus: “ State of Georgia, Campbell county.” So that the allegation meant, by using the words “ in the county aforesaid,” Campbell county, and could not possibly mean any other county, because no other is named anywhere in the indictment. Thus the place is most distinctly alleged where the deceased was killed. 13 Ga., 396, 400.

4. The time is alleged with equal clearness. It is on the 25th of December, 1882. The mere repetition of' “ then and there ” is wholly unnecessary under the law oí this state. Code §§4628, 4629 ; 13 Ga. supra.

5. From what we have said, it will appear that we hold the indictment itself good. It alleges that deceased was killed on the twenty-fifth day of December, 1882. If killed on that day, he died that day. The jury must have so understood it, and the law is that if the indictment “ states the offence in the terms and language of this Code, or so plainly that the nature of the offence charged may be easily understood by the jury,” then it “shall be deemed sufficiently technical and correct.”

How easy to understand the day and the place where this crime was charged ? How easy to understand where the deceased was killed, when he was killed, who killed him, with what weapon he did the killing and with what motive, to wit, “ with malice aforethought,” he did kill deceased. Code, §4628 supra. The allegation is the very substance and essence of murder as defined in section 432G of the Code. It is the unlawful killing of a human being with malice aforethought, and all these constituents of the crime are distinctly alleged; so distinctly that the jury understood it as easily as if there had been pages of iteration and reiteration, without study or explanation, perhaps much more easily. The indictment need not allege that the crime was committed “ in the peace of the state ” or that the defendant was *■ of sound memory and discretion,” or that the pistol was loaded with powder and ball. 63 Ga., 600 ; 47 Ib., 624. So that the language of the Code necessary to be in the indictment is in this, and it is plain enough for the jury to understand it easily, and the law makes it “ technical and correct.”

Therefore we do not see wherein it is wanting in technicality and correctness before verdict; but assuredly after verdict in substance it was all sufficient. Code, §4629, supra; 46 Ga., 322.

Judgment affirmed.