Lampkin v. State , 1891 Ga. LEXIS 212 ( 1891 )

Bleckley, Chief Justice.

1. The first ground of the motion in arrest of judgment attacks the verdict as founded upon an indictment which attempts to charge the accused in one count with two offences, to wit, robbery by force and robbery by intimidation. "Were this ground true in fact, it would be no cause for arresting the judgment. It would render the indictment bad in form, but not in substance. The code, §4628, declares that “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct which 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.” And the next section declares that “All exceptions which go merely to the form of an indictment shall be made before trial; and no motion in arrest of judgment shall be sustained for auy matter uot affecting the real merits of the offence charged in such indictment.” That two. offences are charged in the same count will not hinder the charging of either of them in the terms and language of the code, and the jury may as easily understand the nature of each as if they were set forth in separate counts. It is true that the code recognizes as a rule of good pleading that separate counts ought sometimes to be used, for it says, in laying down the form of an indictment: “If there should be more than one count, each additional count shall commence in the following form,” etc. (§4628 supra.) But it fails to exact as necessary to the substance of an indictment more than one count. On the contrary it prescribes as the only test of substance that the indictment shall state the offence in the terms and language of the code, or so plainly that the nature of the offence charged may be easily understood by the jury. "When an indictment should contain more than one count and contains one only, it is bad in form and is subject to exception before trial. But no motion in arrest of judgment can be sustained for any matter not affecting the real merits of the offence charged. Dividing the indictment into several counts has no effect whatever on the real merits of the offence or offences charged. Such a defect has relation alone to the manner aud form of setting forth the offence or the several offences. It is a defect in the mode of pleading, and not in the substance or real merits of the matter pleaded. If the accused is unwilling to go to trial upon an indictment defective in form only, his remedy is to demur or except in due time and manner. If upon being arraigned he shall demur to the indictment, his demurrer must be made in writing. And one object of the arraignment is to afford him an opportunity to object to the indictment before trial. Code, §4639. If he insists upon it, he has a right to be tried upon an indictment good in form as well as in substance. But if he neglects matters of form until after verdict, he is then too late. If he is found guilty in express terms of one of the offences charged in the indictment, he may be sentenced for that offence irrespective of whether it is charged alone or in conjunction with others in the same count. Since the language which we have quoted from the code first came into our law, there have been several cases ruled by this court, in which it has been treated as law that two distinct offences cannot be joined in the same count in an indictment. But there,is no affirmative ruling that such joinder would be cause for arresting the judgmeut, though several adjudications, as we have just said, pronounce the practice had pleading. We concur in this view, and would not hesitate to declare an overloaded count bad on exception or demurrer taken before trial. In dealing with such defects, the distinction we now make has not always been noticed, but it should, have been. It was fully brought out in Williams v. The State, 60 Ga. 88, in which ease the indictment charged, in the same count, two felonies, to wit, burglary in the night time, and larceny from the house. After a verdict of guilty of larceny from the house, a motion in arrest of judgment was made and overruled. This judgment was affirmed.

2. But the indictment in the present case does not charge two distinct offences. Bobbery by force and robbery by intimidation are two grades of the same offence, and both grades may be charged in the same count. This was expressly ruled in Long v. The State, 12 Ga. 293.

3-8. The other questions involved in the case are carefully and explicitly dealt with in the head-notes.

Judgment affirmed.