☢ test - Í

I, II, III, IV, or V.” Schedule V includes “[a]ny compound, mixture, or preparation containing limited quantities of any of the following narcotic drugs [including codeine], or salts thereof, which also contains one or more nonnarcotic, active, medicinal ingredients in sufficient proportion to confer upon the compound, mixture, or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone.” OCGA § 16-13-29(1). Contrary to defendant’s argument, allegation that the substance was a “Schedule V controlled substance” didn’t require the State to prove that the codeine was part of a “compound, mixture or preparation” as described therein. Brown v. State, 295 Ga. 804, 764 S.E.2d 376 (October 6, 2014). Murder and firearms convictions affirmed; no error in denying special demurrer objecting to alleged “prejudicial surplusage” in indictment. References to a “gun battle” which resulted in a child’s death “in the crossfire” “‘accurately described the offenses charged and made the charges more easily understood’ by the defendants and the jury,” quoting Malloy v. State, 293 Ga. 350, 360 (744 S.E.2d 778) (2013). “[M]ere surplusage does not vitiate an otherwise valid indictment,’” id . Ford-Calhoun v. State, 327 Ga.App. 835, 761 S.E.2d 388 (July 3, 2014). Evidence supported one aggravated assault charge, but not the other. Indictment charged defendants with aggravated assault by pointing a gun at the victim, but no evidence indicated that anyone pointed a gun at the victim. Contrary to State’s contention, the allegation of pointing a gun was not “mere surplusage to the necessary element of ‘intent to rob.’” “‘No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed.’ (Punctuation and emphasis omitted.) Ross [ v. State, 195 Ga.App. 624, 625(1), 394 S.E.2d 418 (1990)].” Accord, New case!Whaley v. State , A16A0569, ___ Ga.App. ___, ___ S.E.2d ___, 2016 WL 2339714 (May 4, 2016) (reckless driving conviction reversed; “the State failed to prove that Whaley committed reckless driving in the manner alleged in the indictment.”). Malloy v. State, 293 Ga. 350, 744 S.E.2d 778 (June 17, 2013). Interim appeal in prosecution for Medicaid fraud; trial court properly denied special demurrer and motion to strike surplusage from indictment. “[Defendant] argues the extensive ‘background’ section included in each count contains politically charged, misleading and prejudicial surplusage likely to diminish the presumption of innocence to which he is entitled and is prejudicial and redundant. … The trial court found that the challenged language accurately describes the offenses charged and makes the charges more easily understood by explaining why federal funds could not be applied to elective abortions. The language of an indictment is to be interpreted liberally in favor of the State and a demurrer raising special objections strictly construed against the pleader, see Johnson v. State, 233 Ga.App. 450, 451, 504 S.E.2d 290 (1998). We find no error in the trial court's denial of appellant's special demurrer and motion to strike surplusage.” Accord, Brown (October 6, 2014), above. Doe v. State, 306 Ga.App. 348, 702 S.E.2d 669 (October 5, 2010), affirmed on other grounds, 290 Ga. 667, 725 S.E.2d 234 (March 5, 2012). Language of indictment, describing offense of attempting to influence winning of lottery prize, controlled over erroneous reference to code section dealing with falsely uttering a state lottery ticket. “While Doe claims that the reference to ‘falsely uttering’ a lottery ticket was ‘extraneous and prejudicial[,]’ we have already held that ‘mere surplusage does not vitiate an otherwise sufficient indictment.’ State v. Barnett, 268 Ga.App. 900, 901(1) (602 S.E.2d 899) (2004) (trial court erred in granting special demurrer even though indictment erroneously referenced ‘family violence’ in count alleging aggravated assault pursuant to OCGA § 16-5-21).” State v. Corhen, 306 Ga.App. 495, 700 S.E.2d 912 (September 15, 2010). Trial court erred in granting demurrers to defendants’ indictment for residential mortgage fraud and felony theft by deception. Indictment was not voided by surplus language. Count 1, charging defendants with residential mortgage fraud, was followed by a sentence referencing, but not charging, participating in a pattern of residential mortgage fraud. “[T]he language at issue … is not set out as a separate count, nor can it be incorporated into Count 1 or any other count, because those counts do not contain language incorporating the charge. [fn] Further, the language is not essential to charge an offense under Count 1 or any other count in the indictment, so it may be omitted without affecting the validity of the individual charges. Striplin v. State, [284 Ga.App. 92, 95, 643 S.E.2d 361 (2007)]. Finally, to the extent that the language is confusing to the named defendants because it fails to notify them as to what charges they must defend against, disregarding or omitting the language as surplusage resolves that confusion. Accordingly, we conclude that the language at issue is mere surplusage that does not invalidate the indictment and that may be omitted without affecting the remaining charges. Striplin v. State, 284 Ga.App. at 95, 643 S.E.2d 361.” Accord, Kimbrough v. State , A15A1738, ___ Ga.App. ___, 785 S.E.2d 54, 2016 WL 1138791 (March 24, 2016) (“An allegation in an indictment that is wholly unnecessary to constitute the offenses charged is mere surplusage,” quoting Fair v. State, 284 Ga. 165, 167(2)(a) (664 S.E.2d 227) (2008)). 29. TYPOGRAPHICAL ERROR

Made with FlippingBook Ebook Creator