Green v. Russell

Gilbert, J.,

concurring specially. I concur in the principles stated in the opinion of the Chief Justice, and therefore am of the opinion that the question as propounded is properly answered. However, I am of the further opinion that according to the facts stated in the question the indictment was neither void nor defective. I feel safe in asserting that the court, in answering the question, should not be understood as ruling that the indictment was defective, but deemed it appropriate to answer the question strictly as it was propounded. The indictment was in the form provided in the Penal Code, § 954. That section declares: “Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which' states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury.” It has been held by this court that the requisite of a valid indictment as to form is that the offense with which the accused is charged be so stated as to give him ample opportunity to prepare for his defense. It is not necessary that the indictment follow the form prescribed in this section to the letter. It is sufficient if it conform thereto in all material particulars. The indictment in this case sets out in haec verba the check, as follows: “Atlanta, Ga. Nov. 14, 1930. The First National Bank of Atlanta, Pryor Street Branch. Pay to the order of Western Hnion $152 one hundred fifty-two dollars. Counter-check. Harry Miller Jr.” It then proceeds to allege fraudulent intent, etc.

The amendment which was allowed by consent was in the following words: “And the First National Bank of Atlanta is an incorporated bank located within the State of Georgia.” The check itself, by its date line and by tbe name of the bank, showed that the bank was located in Atlanta, Ga. Atlanta being an incorporated municipality, the courts will take judicial cognizance that it is located within the State of Georgia. It is obligatory upon court and counsel to know, and all persons are obliged to know as a matter of law, that a national bank is incorporated. There can be no unincorporated national bank. Consequently, when the indictment copied the check showing that the bank was located within the City of Atlanta, Ga., and that it was a national bank, the accused must have known that the indictment referred to an incorporated bank located and doing business in the State of Georgia, and afforded ample opportunity for preparing a defense. The statute (Penal Code (1910), § 855) provides that jurors must be “intelligent and upright.” The nature of the charge must have been “easily understood by the jury.” Hence it is my opinion that the indictment is in no way defective, and that the amendment neither added to nor took from the effectiveness of the indictment as it was voted and returned by the grand jury. It necessarily follows that there was nothing to waive in the matter of the defendant’s constitutional right to be tried for a felony on a valid indictment.