Indictment defects handled by pre-trial demurrer or post-conviction motion to arrest judgment.

- Defects in an indictment or accusation must be taken advantage of either by demurrer before trial or by motion in arrest of judgment after conviction. Rucker v. State, 114 Ga. 13, 39 S.E. 902 (1901).

How form of indictment excepted to.

- When the accused desires to take exception to the form of an indictment, it is necessary that the accused do so by demurrer or motion to quash, made in writing and before pleading to the merits. Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955).

Exception to the denial of a motion to quash the indictment cannot be properly made a ground of a motion for new trial. Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955).

Exceptions to form must be taken before joinder of issue.

- Exceptions which go merely to the form of the indictment, if not taken before joinder of issue, are considered to be waived. Driver v. State, 60 Ga. App. 719, 4 S.E.2d 922 (1939).

When demurrers, motions, and pleas to be made.

- Motions to quash an indictment must be filed prior to pleading to the merits. Sadler v. State, 124 Ga. App. 266, 183 S.E.2d 501 (1971).

Demurrer to the indictment, motion to quash, or plea in abatement must be entered before trial. Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975).

Defendant waives any alleged defects by going to trial under the indictment without complaint. Sheffield v. State, 235 Ga. 507, 220 S.E.2d 265 (1975).

All demurrers to the form of the indictment, i.e., special demurrers, must be made at or before arraignment. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978).

Special demurrers not made at or before arraignment are waived. Bramblett v. State, 239 Ga. 336, 236 S.E.2d 580 (1977), cert. denied, 434 U.S. 1013, 98 S. Ct. 728, 54 L. Ed. 2d 757 (1978); Carter v. State, 155 Ga. App. 49, 270 S.E.2d 233 (1980).

There was no merit to the defendant's contention that the defendant's indictment improperly charged defendant with two counts, one of murder and one of voluntary manslaughter, and that the defendant was therefore unable to determine the offense with which the defendant would be charged. The defendant made no objection to the indictment at or prior to trial and consequently waived any right to make any objection on appeal. O'Toole v. State, 258 Ga. 614, 373 S.E.2d 12 (1988).

Trial court properly denied a defendant's motion to quash when the indictment quoted the language of O.C.G.A. § 16-9-1 and identified the offense as forgery in the first degree, and further identified the date and place of the offense as well as the bank on which the purported check was drawn and the check number. The defendant could not reasonably claim that the defendant was surprised by evidence at trial or was unable to prepare a defense, or that the defendant risked future prosecution for the same offense; the challenge at best went to the form of the accusation and should have been raised via special demurrer prior to trial. Wilkes v. State, 293 Ga. App. 724, 667 S.E.2d 705 (2008), overruled on other grounds, Clay v. State, 290 Ga. 822, 725 S.E.2d 260 (2012).

Contention that an accusation improperly identifies the victim is a challenge to the form of the accusation, and such challenges must be made before trial. Mooney v. State, 250 Ga. App. 13, 550 S.E.2d 421 (2001).

Waiver of right to perfect accusation or indictment.

- One may waive defects in the accusation or indictment, and after waiver may not question the indictment unless absolutely void. Lanier v. State, 5 Ga. App. 472, 63 S.E. 536 (1909); Isaacs v. State, 7 Ga. App. 799, 68 S.E. 338 (1910).

One who waives the right to be tried upon an indictment perfect in form as well as substance, and takes one's chances of acquittal, will not be heard, after conviction, to urge defects in the indictment, unless those defects are so great that the accusation is absolutely void. Driver v. State, 60 Ga. App. 719, 4 S.E.2d 922 (1939); Tanner v. State, 90 Ga. App. 789, 84 S.E.2d 600 (1954).

Unless the defects appearing in an indictment or accusation are so great that the indictment or accusation is absolutely void, the right to a perfect indictment or accusation may be waived, and is waived by going to trial under a defective indictment or accusation without complaint. Moore v. State, 94 Ga. App. 210, 94 S.E.2d 80 (1956).

Defendant has a right to be tried upon an indictment that is perfect in form and substance, but this right can be waived under certain circumstances if a defendant fails to timely challenge the indictment. McKay v. State, 234 Ga. App. 556, 507 S.E.2d 484 (1998).

When defects waived.

- If exceptions to form are not taken by special demurrer or plea before joinder of issue the exceptions are considered as waived. The exceptions cannot be reached by a motion in arrest of judgment. Newsome v. State, 2 Ga. App. 392, 58 S.E. 672 (1907).

When an indictment incorrectly charged the defendant with possession of a substance composed of a purity of one-tenth of a percent of cocaine, and the defendant moved, at trial, to dismiss the indictment, the trial court properly refused and constructively amended the indictment before the jury to read "ten percent." By waiting until trial to complain of the form of the indictment, the defendant was too late; motions to quash must be entered before trial, or are waived. Arena v. State, 194 Ga. App. 883, 392 S.E.2d 264 (1990).

Demurrer to indictment is too late when filed after pleading to the merits.

- Demurrer to indictment charging the defendant with robbery by force, on grounds of lack of particularity in description of stolen property and collective valuation of the articles taken, being special in nature and not having been filed until after the defendant pled to the merits, was too late; nor did the court err in refusing to allow the defendant to withdraw such plea. Burns v. State, 191 Ga. 60, 11 S.E.2d 350 (1940).

Cited in McCoy v. State, 15 Ga. 205 (1854); Long v. State, 38 Ga. 491 (1868); Bell v. State, 41 Ga. 589 (1871); Bostock v. State, 61 Ga. 635 (1878); Lampkin v. State, 87 Ga. 516, 13 S.E. 523 (1891); Martin v. State, 115 Ga. 255, 41 S.E. 576 (1902); Wells v. State, 116 Ga. 87, 42 S.E. 390 (1902); Tate v. State, 142 Ga. App. 487, 236 S.E.2d 173 (1977); State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Joiner v. State, 163 Ga. App. 521, 295 S.E.2d 219 (1982); State v. Tollison, 176 Ga. App. 35, 335 S.E.2d 153 (1985); Dunbar v. State, 209 Ga. App. 97, 432 S.E.2d 829 (1993); Foster v. State, 218 Ga. App. 569, 462 S.E.2d 455 (1995); Smith v. State, 239 Ga. App. 515, 521 S.E.2d 450 (1999); Yates v. State, 248 Ga. App. 35, 545 S.E.2d 169 (2001).

When motion in arrest of judgment must be made.

- Motion in arrest of judgment must be made during the term at which the trial was held and the sentence imposed. Spence v. State, 7 Ga. App. 825, 68 S.E. 443 (1910); Beall v. State, 21 Ga. App. 73, 94 S.E. 74 (1917); Rambo v. State, 25 Ga. App. 390, 103 S.E. 494 (1920).

Motion in arrest of judgment only for errors on merits.

- Motion in arrest of judgment after verdict may take advantage of such defects as might be taken advantage of by demurrer before pleading to the merits. It lies only for matters affecting the merits, not for matters of form. Wood v. State, 46 Ga. 322 (1872); White v. State, 93 Ga. 47, 19 S.E. 49 (1894); Boswell v. State, 114 Ga. 40, 39 S.E. 897 (1901); Scandrett v. State, 124 Ga. 141, 52 S.E. 160 (1905); Foss v. State, 15 Ga. App. 478, 83 S.E. 880 (1914).

Without consideration of trial evidence.

- Evidence in the trial may not be considered on a motion in arrest of judgment because the motion may be based only upon those defects in the indictment which are apparent on the face of the record and not cured by the verdict. Sessions v. State, 3 Ga. App. 13, 59 S.E. 196 (1907).

Defects must be obvious.

- Motion in arrest of judgment is to be based upon only those defects apparent on the face of the record which are not cured by the verdict. Spence v. State, 7 Ga. App. 825, 68 S.E. 443 (1910); Darsey v. State, 17 Ga. App. 280, 86 S.E. 781 (1915); Beall v. State, 21 Ga. App. 73, 94 S.E. 74 (1917).

Defect must be incurable.

- Motion in arrest of judgment must be predicated upon a defect in the indictment which is not amendable. Smith v. State, 17 Ga. App. 612, 87 S.E. 846 (1916).

Motion in arrest of judgment must specify the defects which render the indictment fatally defective. Rolin v. State, 70 Ga. 719 (1883).

Unconstitutional statute as basis for indictment.

- Motion in arrest of judgment may be used in order to show that the indictment is based upon an unconstitutional statute because such a defect is not amendable. Boswell v. State, 114 Ga. 40, 39 S.E. 897 (1901).

Verdict too vague.

- Motion in arrest of judgment is a proper remedy when the verdict is so vague and uncertain that no legal judgment could be rendered thereon. O'Connell v. State, 55 Ga. 191 (1875); Smith v. State, 117 Ga. 16, 43 S.E. 440 (1903).

Verdict and indictment show no guilt.

- Motion in arrest of judgment is the proper remedy when the verdict construed with the indictment fails to find the defendant guilty of any offense. Lanier v. State, 5 Ga. App. 472, 63 S.E. 536 (1909).

Felony verdict given for misdemeanor indictment.

- Motion in arrest of judgment is the proper remedy where a verdict for a felony is rendered under an indictment for a misdemeanor. Allen v. State, 86 Ga. 399, 12 S.E. 651 (1890); Wells v. State, 116 Ga. 87, 42 S.E. 390 (1902).

Conviction void on face.

- Motion in arrest of judgment is the proper remedy when judgment of conviction is void on the judgment's face. Ezzard v. State, 11 Ga. App. 30, 74 S.E. 551 (1912).

Indictment void.

- Motion in arrest of judgment is the proper remedy when the indictment is void. Lanier v. State, 5 Ga. App. 472, 63 S.E. 536 (1909); Isaacs v. State, 7 Ga. App. 799, 68 S.E. 338 (1910).

Georgia no longer strictly applies the fatal variance rule. Tyson v. State, 145 Ga. App. 21, 243 S.E.2d 314 (1978).

Clerical error in otherwise good indictment.

- When the indictment in a case is otherwise good, the clerical error of writing inadvertently the word "accused" for the word "prosecutor" does not vitiate the indictment. Since the word which is changed does not so obscure the sense that a juror or person of ordinary intelligence cannot with certainty ascertain the meaning, the defendant will not be permitted after the verdict to take advantage of this mere clerical error which is corrected by the necessary intendment of the indictment. Lewis v. State, 55 Ga. App. 743, 191 S.E. 278 (1937).

Motion in arrest of judgment is properly denied when the indictment is demurrable but not void. Gazaway v. State, 9 Ga. App. 194, 70 S.E. 978 (1911).

Motion not appropriate although guilty plea withdrawal not shown on record.

- Motion in arrest of judgment is properly denied when withdrawal of plea of guilty is not shown on the record. Garner v. State, 42 Ga. 203 (1871).

Motion not appropriate when copy bill not fully endorsed.

- Motion in arrest of judgment is properly denied when a copy bill of an indictment which has been established does not have upon it any endorsement of "true bill" or other finding by the grand jury. Hughes v. State, 76 Ga. 39 (1885).

Misjoinder of offenses in same count.

- Motion in arrest of judgment is properly denied although misjoinder of offenses occurs in the same count of the indictment. Lampkin v. State, 87 Ga. 516, 13 S.E. 523 (1891).

County name stated only in caption.

- Motion in arrest of judgment is properly denied even when a blank is left in indictment for name of county, the county being stated in the caption. Lambert v. State, 11 Ga. App. 149, 74 S.E. 858 (1912).

Body of bill and verdict show different offenses.

- When a return of "true bill for voluntary manslaughter" was endorsed by the grand jury and the accused was found guilty of this offense, the judgment of conviction will not be arrested because the offense of murder was charged in the body of the bill. Williams v. State, 13 Ga. App. 83, 78 S.E. 854 (1913).

Verdict finds defendants and prior convicts guilty.

- Motion in arrest of judgment is properly denied when the defendants are jointly indicted with others, whose cases have been disposed of either by pleas of guilty or by verdict of guilty, and the verdict returned finds all of the defendants guilty. This is a good verdict. Bird v. State, 9 Ga. App. 218, 70 S.E. 966 (1911).

Indictment omits ownership in burglary case.

- Motion in arrest of judgment is properly denied when after verdict of guilty of burglary the motion is made because the indictment failed to allege ownership. Berry v. State, 92 Ga. 47, 17 S.E. 1006 (1893).

Larceny (now theft) indictment omits status of company.

- Motion in arrest of judgment is properly denied in a trial of larceny although the indictment does not state whether the company is an artificial or natural person or firm. Hatfield v. State, 76 Ga. 499 (1886).

Record omits stating if defendant present at judgment.

- Motion in arrest of judgment is properly denied although the record is silent as to whether the prisoner and the prisoner's counsel were present when the verdict was rendered and when sentence pronounced. Smith v. State, 60 Ga. 430 (1878); Franks v. State, 120 Ga. 495, 48 S.E. 148 (1904).

Juror serving twice.

- Motion in arrest of judgment is properly denied when juror after serving first week voluntarily serves again and the defendant does not challenge the array. McAfee v. State, 31 Ga. 411 (1860).

Effect of sustaining a motion in arrest of judgment is to declare the indictment void. Hill v. Nelms, 122 Ga. 572, 50 S.E. 344 (1905).

Trial court did not err in denying the defendant's motion in arrest of judgment, which the defendant filed to attack the validity of the indictment filed against the defendant, as O.C.G.A. § 40-6-391 could properly serve as a predicate offense under the vehicular homicide statute; a presumption that the defendant was not under the influence at the time of the accident did not apply. The legislature intended § 40-6-391 to serve as a statutory predicate for the vehicular homicide statute, and the defendant's conviction under the vehicular homicide statute after application of the predicate offense, § 40-6-391, did not violate the defendant's equal protection rights under either the state or federal constitutions. David v. State, 261 Ga. App. 468, 583 S.E.2d 135 (2003).

Defects in indictment.

- Defects in an indictment or accusation furnish no ground for a new trial. Scandrett v. State, 124 Ga. 141, 52 S.E. 160 (1905); Stubbs v. State, 1 Ga. App. 504, 58 S.E. 236 (1907); Rogers v. State, 1 Ga. App. 527, 58 S.E. 236 (1907); Foss v. State, 15 Ga. App. 478, 83 S.E. 880 (1914).

Motion for new trial sets aside judgment and is heard first.

- When a motion for a new trial and a motion in arrest of judgment are both made, though the latter be made first, the former will be heard first and if sustained dispense with a hearing on the latter, for it in effect sets aside the judgment. Williams v. State, 121 Ga. 579, 49 S.E. 689 (1905).

For example of the effect of making motion for new trial on ground which will support motion in arrest of judgment, see Tate v. Cowart, 48 Ga. 540 (1873); Boswell v. State, 114 Ga. 40, 39 S.E. 897 (1901).

For example of the effect of making motion in arrest of judgment in a proper case for a motion for a new trial, see Lowther v. State, 18 Ga. App. 461, 89 S.E. 536 (1916).

ALR.

- Sufficiency of indictment as affected by bill of particulars, 10 A.L.R. 982.

Description in indictment for perjury of proceeding in which perjury was committed, 24 A.L.R. 1137.

Power of court to pass on competency, legality, or sufficiency of evidence on which indictment is based, 31 A.L.R. 1479.

Sufficiency of description of automobile, or automobile equipment or accessories, in indictment, information, or complaint in criminal proceedings, 100 A.L.R. 791.

Necessity of alleging in information or indictment that act was "unlawful," 169 A.L.R. 166.

Necessity of naming owner of building in indictment or information for burglary, 169 A.L.R. 887.

Necessity of alleging in indictment or information limitation-tolling facts, 52 A.L.R.3d 922.

Use of abbreviation in indictment or information, 92 A.L.R.3d 494.

Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment, 23 A.L.R.4th 154.

Administrative Rules and Regulations.

- Mental Health Services, Official Compilation of the Rules and Regulations of the State of Georgia, Chapter 125-4-5.