State v. O'QUINN , 192 Ga. App. 359 ( 1989 )

Birdsong, Judge.

The State of Georgia appeals from the grant of appellee’s motion to quash the indictment against him. The record does not contain any written motion to quash. The transcript reveals that appellee, Randall L. O’Quinn, during a pre-trial hearing, made an oral motion “to quash the indictment.” We are unsure of the grounds, but they appear to be “an issue . . . involving law enforcement officers of Mr. Moreland’s D.O.T. — Department of Transportation. There’s a question of their authority to make the initial stop in this case. . . .” No evidence was presented. Each counsel stated to the court what he thought the evidence would show. The court advised counsel: “Because I don’t know what the facts are. Just submit a little brief on it, and send the District Attorney a copy of it. And you just respond to his brief, and you can set out what the facts were, and whatever you contend that the facts are, I’ll accept. That don’t mean they’re true, but I’ll accept them for the purpose of this motion.” The trial court granted the motion to quash and the State brings this appeal. Held:

1. The State enumerates as error the grant of appellee’s motion to quash the indictment. At the outset we must notice the potential for chaos an appellate court faces in situations such as the instant appeal because of the current absence of an adequate statutory code of criminal procedure. Appellee made a non-statutory motion to address an issue not procedurally proper, according to case precedent. Because of the absence of a criminal code of procedure, such non-statutory motions do not always receive the same treatment. See generally Bramblett v. State, 239 Ga. 336, 337 (236 SE2d 580).

On appeal, each party argues in his brief what the facts of this case show. Naturally they are not in agreement. Secondly, we have no evidence in the record to which we can refer to determine the actual facts, or which of the parties’ recitations represent the more accurate account. It is a sound rule of appellate practice that “ ‘ “[t]he burden is always on the appellant in asserting error to show it affirmatively by the record.” [Cits.]’ ‘The brief cannot serve in the place of the record or the transcript for the purpose of demonstrating error or for supporting a claim of error.’ ” Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840); accord Finley v. Griswold, 149 Ga. App. 612, 615 (255 SE2d 87). In the instant appeal there is a total lack of evidence to show what occurred at the time of the commission of these offenses. For example, we cannot determine whether a “citizen’s arrest” occurred (OCGA § 17-4-60), whether or not the DOT “enforcement officers” observed a criminal offense (i.e., DUI, OCGA § 40-6-391; or OCGA §§ 40-6-50; 40-6-51; 40-6-52), or a violation of a statute coming under D.O.T. jurisdiction (i.e., OCGA § 32-6-1). This defect, however, does not prevent this court from reaching a decision on the merits of the enumerated error.

2. Appellee presented an oral motion to quash the indictment. “A motion to quash an indictment is merely a demurrer thereto, and an indictment is not demurrable for matters of fact dehors the pleadings and the record.” Walker v. State, 73 Ga. App. 20, 21 (35 SE2d 391); accord Felker v. State, 172 Ga. App. 492 (323 SE2d 817), U. S. cert. den. 471 U. S. 1102. “An indictment may be quashed only for matters appearing on its face.” Mitchell v. State, 225 Ga. 656 (1) (171 SE2d 140); McDonald v. State, 222 Ga. 596, 597 (3) (a) (151 SE2d 121); Burke v. State, 116 Ga. App. 753, 754 (2) (159 SE2d 176). “Since demurrers and motions to quash do not reach matters not appearing upon the face of an indictment, no question is raised here [by information disclosed by counsel] as to the validity of the indictment.” Millhollan v. State, 221 Ga. 165 (1) (143 SE2d 730). The indictment is in the record and is in proper form and substance, and is not subject to a motion to quash. See McKinnon v. State, 124 Ga. App. 821, 822 (2) (186 SE2d 315).

Furthermore, “[exceptions which go merely to the form of an indictment must be made by motion to quash, or demurrer in writing, before pleading to the merits. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested.” (Emphasis supplied.) Gilmore v. State, 118 Ga. 299 (1) (45 SE 226); see also OCGA § 17-7-111. A motion in arrest of judgment lies “for any defect not amendable which appears on the face of the record or pleadings.” OCGA § 17-9-61. “ ‘Where an indictment is not on its face so defective that a motion in arrest of judgment would lie, an objection to it must be in writing (cit.). An oral objection, being ineffective for its purpose, is the equivalent of none at all, and, if no other action be taken, a waiver results.’ ” Curtis v. State, 102 Ga. App. 790, 792 (118 SE2d 264); accord Gilmore, supra; Sheppard v. State, 95 Ga. App. 507, 508 (3) (98 SE2d 169).

Appellee’s oral motion to quash was ineffective for the purpose offered.

Judgment reversed.

Deen, P. J., McMurray, P. J., Banke, P. J., Pope and Beasley, JJ., concur. Carley, C. J., concurs in Division 2 and in judgment. Sognier, J., concurs in judgment only. Benham, J., dissents.