☢ test - Í

to the form of the indictment or to factual details alleged therein. State v. Jones, 274 Ga. 287, 288-289(1) (553 S.E.2d 612) (2001); Smith v. Hardrick, supra at 54(1). The indictment must be read as a whole. State v. Jones, [274 Ga. 287, 289(1) (553 S.E.2d 612) (2001)].” Accompanying felony murder count gave more specific allegation as to how lamp was used, striking victim about the head. Jones v. State, 282 Ga. 47, 644 S.E.2d 853 (May 14, 2007). Count of indictment was sufficient to set forth charge of felony murder based on aggravated assault, although it “failed to set forth how the predicate assault was of an aggravated nature;” another count “charged [defendant] with possession of a knife ‘having a blade of three or more inches in length during the commission of a felony.” Scott v. State, 281 Ga.App. 813, 637 S.E.2d 751 (October 6, 2006). Indictment was not fatally defective although it did not, in charge of aggravated assault, allege that defendant’s hands were “used as deadly weapons and were likely to cause bodily injury.” “The indictment here charged Scott with aggravated assault by choking Hill around the neck with his hands, and the indictment alleged that Scott’s hands were being used offensively against Hill in such manner as to have been likely to have resulted in serious bodily injury or to have actually resulted in serious bodily injury. Although the aggravated assault count of indictment did not additionally allege that Scott had attempted to commit a violent injury or that his act had placed Hill in reasonable apprehension thereof, another count charging him with kidnapping with bodily injury alleged that he had caused bruising around her throat and hemorrhaging in her eyes. Under the circumstances, even though the aggravated assault count was deficient, it was not so fundamentally flawed as to have charged no crime at all. [Cit.] Consequently, Scott waived the defect in the indictment by proceeding to trial without complaint. [Cit.]” State v. Daniels, 281 Ga.App. 224, 635 S.E.2d 835 (August 22, 2006). Trial court properly quashed counts of indictment which failed to set forth all elements of offense, although all elements of the same offense were set out in other counts of the same indictment against other defendants. “The … indictment … charged Daniels in Counts 5, 6, and 7, as a party to the crime of aggravated assault in that he ‘did encourage, aid, or abet ... Clay and others by informing them that the victim ... was in possession of a sum of cash, with knowledge that they were looking for someone to rob.’” “‘[T]here can be no conviction for the commission of a crime an essential element of which is not charged in the indictment.’ (Punctuation and footnote omitted.) Smith v. Hardrick, 266 Ga. 54, 55(1) (464 S.E.2d 198) (1995). A criminal indictment which does not recite language from the Code must allege every essential element of the crime charged. Furthermore, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count. Aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon. (Punctuation omitted; emphasis in original.) State v. Bolman, 222 Ga.App. 534 (474 S.E.2d 721) (1996), citing Smith v. Hardrick, supra. Finally, ‘[a]llegations set forth in one count of an indictment cannot be imputed to a separate count, absent specific reference to the allegation sought to be imputed. ’ (Footnote omitted.) Smith v. Hardrick, supra at 56(3). See also Polk v. State, 275 Ga.App. 467, 468-469(1) (620 S.E.2d 857) (2005).” 19. INTENT Gribble v. State, 332 Ga.App. 285, 772 S.E.2d 236 (April 29, 2015). Theft by taking conviction affirmed; trial court properly denied oral general demurrer during trial. Allegation of intent in indictment was fatally defective for failing to say that defendant “unlawfully” took victim’s television. “Gribble overlooks, however, that the indictment did allege that he ‘did take [Floyd's] television ... with the intention of depriving the owner of said property contrary to the laws of said State.’” Sevostiyanova v. State, 313 Ga.App. 729, 722 S.E.2d 333 (January 12, 2012). Hit and run and related convictions affirmed; accusation wasn’t defective “because it did not use the word ‘knowingly’ in alleging hit-and-run in violation of OCGA § 40–6–270.” “The accusation charged appellant with a violation of OCGA § 40–6–270, because she ‘did unlawfully being the driver of a motor vehicle ... involved in an accident resulting in damage to another vehicle ... leave the scene of the accident and failed to give the other driver her name, address, and registration number of her vehicle, and failed to exhibit her driver's license to another.’ The term ‘unlawfully’ in the accusation, with reference to the appropriate Code section, ‘sufficiently included the intent to commit the criminal act and the knowledge necessary to form such intent.’ (Citations omitted.) Tidwell v. State, 216 Ga.App. 8, 10(1) (453 S.E.2d 64) (1994).” Accord, State v. Wilson , 318 Ga.App. 88, 732 S.E.2d 330 (September 25, 2012).

Made with FlippingBook Ebook Creator