West v. State , 78 Ga. App. 132 ( 1948 )

While Code § 26-1602 may be violated in several ways, only one of the ways need be charged in the indictment; and the evidence here authorized the verdict of guilty of a violation of such section in the one way which was sufficiently charged in the indictment.

DECIDED DECEMBER 3, 1948. The defendant, Lonnie West, was indicted for kidnapping under Code § 26-1602, which provides as follows: "Any person who shall forcibly, maliciously, or fraudulently lead, take, or carry away, or decoy or entice away, any child under the age of 18 years from its parent or guardian, or against his will, or without his consent, shall be guilty of kidnapping." Omitting the formal parts, the body of the indictment was as follows: "For that the said Lonnie West on the 20th day of January in the year 1948, in the county aforesaid then and there, unlawfully, maliciously, and fraudulently did lead and take and carry away and did decoy and entice away Martha Nell Akin, who was then and there a child under the age of 18 years, from her parents, H. P. Akin and Carrie Mae Akin, and against the will of the said parents, H. P. Akin and Carrie Mae Akin." The defendant demurred to the indictment and, after a hearing, the demurrer was overruled. To this judgment the defendant filed exceptions pendente lite. Upon the trial evidence was introduced, and the jury returned a verdict of guilty. The defendant filed a motion for new trial on the general grounds only which was overruled, and he excepted. 1. The ground of the defendant's demurrer to the indictment was that an indictment under Code § 26-1602 must allege, not only that the carrying away was done against the will of the parents, but also that it was done without the consent of the parents.

The crime here in question could have been committed in either way — that is, by carrying the child away against the will of the parents, or by carrying the child away without the consent of the parents. The indictment, having alleged one of the manners in which the crime may be committed, was good against the demurrer on this ground. Cody v. State, 118 Ga. 784 (45 S.E. 622);Dowda v. State, 74 Ga. 12; Earnest v. State, 60 Ga. App. 608 (4 S.E.2d 503).

2. The evidence authorized the verdict, and the trial court did not err in overruling the motion for a new trial.

Judgment affirmed. Gardner and Townsend, JJ., concur.