☢ test - Í

“against the will” of the under-16 victim, even though her age was not alleged in the indictment, where the evidence clearly established that the victim was under the age of consent. Strozier v. State, 277 Ga. 78, 586 S.E.2d 309 (September 15, 2003). “A variance between the victim’s name as alleged in the indictment [John] and as proven at trial [Jones] is not fatal if the two names in fact refer to the same individual, such as where a mere misnomer is involved.” Accord, Tarvin v. State , 277 Ga. 509, 591 S.E.2d 777 (January 12, 2004) (“David” vs. “Davis”); Thompson v. State , 320 Ga.App. 150, 739 S.E.2d 434 (March 7, 2013) (jury could find from evidence that the different names “referred to the same person,” thus no fatal variance); Fletcher v. State , 326 Ga.App. 389, 756 S.E.2d 625 (March 20, 2014) (“Ok Cha” vs. “Ocha Mobley’s Beauty Supply”). Sellers v. State, 263 Ga.App. 144, 587 S.E.2d 276 (September 10, 2003). Indictment identifying minor victim only by initials was subject to pre-trial demurrer. “In a charging instrument, the impulse to protect a minor’s identity must give way to the constitutional considerations governing a procedure that may ultimately lead to loss of liberty by an individual who is, at the time of indictment, presumed innocent.” Note, this only applies where the form is challenged pre-trial: “Had this case proceeded to trial and verdict under the current indictments, we do not believe that reversal would be necessary due to the failure to name the intended victim, since it is apparent that [Sellers] understands the nature of the charges against him based on information gleaned from sources other than the indictment itself. However, because we are reviewing the indictment on interlocutory appeal, before any trial, we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and in substance.” Accord, Driggers v. State , 295 Ga.App. 711, 673 S.E.2d 95 (January 27, 2009) (failure to timely demur was error but harmless where defendant clearly knew victim’s identity.). Greeson v. State, 253 Ga.App. 161, 558 S.E.2d 749 (January 7, 2002). While indictment named owner of alleged stolen vehicle, evidence did not. Held, this was not a fatal variance: “The State showed someone other than Greeson owned the Plymouth, and the indictment gave sufficient notice of the property which was the subject of the prosecution. The technical quality of an owner’s interest need not be pursued in a prosecution for theft by receiving, because ownership is important only in the sense of whether the goods were owned by someone other than the accused.” Dennard v. State , 243 Ga.App. 868, 534 S.E.2d 182 (April 28, 2000). In defendant’s prosecution for attempted child molestation and related offenses, trial court erred by overruling special demurrer; indictment was defective for failing to name victim. “In Irwin v. State, 117 Ga. 722(2), 45 S.E. 59 (1903), the Supreme Court held that ‘[f]or the protection of the accused it is necessary that, in an indictment for an offense against the person of another, the person injured should be referred to by his correct name, if it be known, or by some name by which he is commonly and generally called.’ Id. Applying this rule, we have held that ‘[a]s a general rule , if an accusation charges the defendant with committing a crime against a person, the injured person should be identified in the accusation.’ State v. Kenney, 233 Ga.App. 298, 299(1)(a), 503 S.E.2d 585 (1998). If, however, the gist of the crime is not an offense against another person, it is not necessary to name the victim. Thus, for example, in a prosecution for soliciting a prostitute, we have held that it is not necessary to name the person solicited, since ‘the gist of the offense is the harm done society by such unlawful solicitation.’ Day v. State, 70 Ga.App. 819, 820, 29 S.E.2d 659 (1944). See also Kenney, supra. Similarly, it is not necessary to name the victim in an indictment for burglary, since that is a crime against property. Arrington v. State, 160 Ga.App. 645, 646(2), 288 S.E.2d 97 (1981).” Distinguished, Grube (June 3, 2013), above. Billups v. State, 241 Ga.App. 825, 527 S.E.2d 905 (January 13, 2000). Convictions for armed robbery and aggravated assault affirmed; indictment not fatally defective “because it alleges the defendants took the property of Dixie Food Store, whereas the name of the legal entity which owned the property was actually Dixie Food Company. “The indictment alleges all of the elements of the crime of armed robbery. There can be no reasonable doubt that Maxwell was sufficiently informed of the charges against him and also protected from subsequent prosecution for the same crime.” Jackson v. State, 270 Ga. 494, 512 S.E.2d 241 (February 8, 1999). Defendant was indicted for burglary “predicated on the intent to commit an aggravated assault.” Held, burglary indictment was not subject to dismissal for failure to identify the potential victim of the assault. “See Green v. State, 133 Ga.App. 802, 803(2), 213 S.E.2d 60 (1975) (indictment for burglary predicated on intent to commit larceny need not allege description of goods intended to be stolen).” 32. WAIVER OF INDICTMENT Webb v. State, 278 Ga.App. 9, 627 S.E.2d 925 (March 6, 2006). No due process or equal protection violation where

Made with FlippingBook Ebook Creator