Wood v. State

Court of Appeals of Georgia

Wood v. State

26 S.E.2d 140, 69 Ga. App. 450, 1943 Ga. App. LEXIS 113

CourtCourt of Appeals of Georgia

DecidedMay 22, 1943

Docket30073.

StatusPublished

Cited by8 cases

This text of 26 S.E.2d 140 (Wood v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wood v. State, 26 S.E.2d 140, 69 Ga. App. 450, 1943 Ga. App. LEXIS 113 (Ga. Ct. App. 1943).

Pincite

Opinions

Broyles, C. J.

(After stating the foregoing facts.)

While the offense charged was denominated in the indictment as an “assault,” the facts set forth therein show that it was actually an assault and battery, and it is well settled that in such a case the facts and not the denomination determine what particular offense is charged. And it is conceded in the brief of counsel for the accused that the facts set forth in the indictment show “a completed battery.” The indictment was not subject to special demurrer because it failed to give the exact name of the gas which the defendant was alleged to have released. Under the facts of the ease, as set out in the indictment, the allegation that the name of the gas was not known to the grand jurors was sufficient. Nor was the indictment subject to the general demurrer. And the lan *452 guage in that part of the indictment which charged an attempt to commit an injury upon Elvin Mitchell was mere surplusage and should be treated as such. In Black’s Law Dictionary surplusage in pleading is thus defined: “Allegation of matter wholly foreign and impertinent to the cause. All matter beyond the circumstances necessary to constitute the action.” (Italics ours.) Without the allegation as to an attempt, the indictment sets forth the offense of assault and battery, and upon the trial, if the evidence failed to show an assault and battery but showed an attempt to commit such offense, the defendant could be convicted of such attempt. Therefore the allegation of such attempt was entirely unnecessary in the indictment and was mere surplusage. The cases cited in behalf of the defendant which hold that where an indictment sets out an offense as committed in a particular manner the proof must support the allegations thus made, even though the offense be stated with unnecessary particularity, are not applicable to the facts of this case. cJudgment affirmed.

Gardner, J., concurs.

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

Broyles, C. J.

(After stating the foregoing facts.)

While the offense charged was denominated in the indictment as an “assault,” the facts set forth therein show that it was actually an assault and battery, and it is well settled that in such a case the facts and not the denomination determine what particular offense is charged. And it is conceded in the brief of counsel for the accused that the facts set forth in the indictment show “a completed battery.” The indictment was not subject to special demurrer because it failed to give the exact name of the gas which the defendant was alleged to have released. Under the facts of the ease, as set out in the indictment, the allegation that the name of the gas was not known to the grand jurors was sufficient. Nor was the indictment subject to the general demurrer. And the lan *452 guage in that part of the indictment which charged an attempt to commit an injury upon Elvin Mitchell was mere surplusage and should be treated as such. In Black’s Law Dictionary surplusage in pleading is thus defined: “Allegation of matter wholly foreign and impertinent to the cause. All matter beyond the circumstances necessary to constitute the action.” (Italics ours.) Without the allegation as to an attempt, the indictment sets forth the offense of assault and battery, and upon the trial, if the evidence failed to show an assault and battery but showed an attempt to commit such offense, the defendant could be convicted of such attempt. Therefore the allegation of such attempt was entirely unnecessary in the indictment and was mere surplusage. The cases cited in behalf of the defendant which hold that where an indictment sets out an offense as committed in a particular manner the proof must support the allegations thus made, even though the offense be stated with unnecessary particularity, are not applicable to the facts of this case. cJudgment affirmed.

Gardner, J., concurs.

Cite This Page — Counsel Stack

Bluebook (online)

26 S.E.2d 140, 69 Ga. App. 450, 1943 Ga. App. LEXIS 113, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wood-v-state-gactapp-1943.

Opinions

Related

Cite This Page — Counsel Stack