☢ test - Í

establish a basis for reversal. See Ballentine v. State, 194 Ga.App. 560, 562(4) (390 S.E.2d 887) (1990).” Cooks v. State, 325 Ga.App. 426, 750 S.E.2d 765 (November 18, 2013). Physical precedent only. Robbery conviction reversed; trial court erred by denying general demurrer. “‘[A] general demurrer, in which a defendant contends that the charging instrument fails altogether to charge him with a crime, may be raised at any time before the trial court.’ Bryant v. State, 320 Ga.App. 838, 841(3), 740 S.E.2d 772 (2013) (citation omitted). See also Kain v. State, 287 Ga.App. 45, 48(2), 650 S.E.2d 749 (2007) (general demurrer brought by defense counsel at trial was timely); Ross v. State, 235 Ga.App. 7, 8, 508 S.E.2d 424 (1998) (general demurrer brought at close of evidence was timely). Thus, Cooks' filing of the general demurrer after opening statements was timely.” Indictment here failed to allege an essential element of robbery, i.e., taking of property of another. State v. Wilson, 318 Ga.App. 88, 732 S.E.2d 330 (September 25, 2012). In prosecution for aggravated assault on peace officer and related offenses, trial court erred in granting oral demurrer made after jury impaneled. While general demurrer may be made at any time, even by motion in arrest of judgment, citing McDaniel v. State, 298 Ga.App. 558, 560 (680 S.E.2d 593) (2009), “a motion to arrest judgment due to a defective indictment should be granted only ‘when an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law[.]’ (Citation and punctuation omitted.) Jones v. State, 240 Ga.App. 484, 485(2) (523 S.E.2d 73) (1999). See Beals v. State, 288 Ga.App. 815, 816(1) (655 S.E.2d 687) (2007) (accord).” Each count of the indictment here was sufficient to charge either the named offense or a lesser offense; thus, the indictment wasn’t subject to general demurrer. Furthermore, “the State is authorized to prosecute Wilson for the crimes that are named in the indictment, as well as the lesser included offenses of those crimes.” State v. Horsley, 310 Ga.App. 324, 714 S.E.2d 1 (June 3, 2011). Trial court erred by granting general demurrer to indictment for terroristic threats . “In sustaining the general demurrer, the trial court mistakenly relied on matters not appearing on the face of the indictment, concluding that a placard stating that the alleged victim [Elton John] must die does not constitute a direct threat of violence. However, a ‘demurrer to an indictment does not reach matters not appearing on its face. [Cit.] A demurrer may properly attack only defects which appear on the face of the indictment and a demurrer which seeks to add facts not so apparent but supply extrinsic matters must fail as a speaking demurrer. [Cits.]’ State v. Holmes, 142 Ga.App. 847, 848 (237 S.E.2d 406) (1977).” Raybon v. State, 309 Ga.App. 365, 710 S.E.2d 579 (April 18, 2011). No ineffective assistance where counsel failed to demur to indictment for child molestation; contrary to defendant’s argument the rule of lenity doesn’t implicate the sufficiency of the indictment. Defendant contended that under the rule of lenity, his charge for felony child molestation, based on having intercourse on a child between 11 or 12 years old, should have been charged as felony statutory rape. “But Raybon has provided no authority, and we have found none, for the proposition that the rule of lenity could subject to demurrer an otherwise sufficient indictment,” citing Banta v. State, 281 Ga. 615, 618(2) (642 S.E.2d 51) (2007) “(where single act, as factual matter, violates more than one penal statute, defendant may be prosecuted for more than one crime; the injustice to be avoided in that circumstance is sentencing the defendant for more than one crime following his conviction of multiple crimes; this injustice is avoided through merger, not application of rule of lenity); Falagian v. State, 300 Ga.App. 187, 190–191(2) (684 S.E.2d 340) (2009) (argument based on rule of lenity was premature when defendant had not yet been convicted).” State v. Hood, 307 Ga.App. 439, 706 S.E.2d 566 (December 15, 2010). Trial court properly denied general demurrer but erred by granting special demurrer. General demurrer: “ A general demurrer challenging the sufficiency of the substance of the indictment is appropriate when the indictment is ‘[f]atally defective and incapable of supporting a conviction.’ State v. Delaby, 298 Ga.App. 723, 724 (681 S.E.2d 645) (2009). See also Bramblett v. State, 239 Ga. 336, 337(1) (236 S.E.2d 580) (1977). ‘The true test of the sufficiency of the indictment to withstand a general demurrer ... is found in the answer to the question: Can the defendant admit the charge as made and still be innocent? If he can, the indictment is fatally defective. [Cit.]’ Adams v. State, 293 Ga.App. 377, 381(3) (667 S.E.2d 186) (2008).” Distinguished from a special demurrer, which “‘challenges the sufficiency of the form of the indictment. [Cit.]’ Bramblett, 239 Ga. at 337(1).” Indictment here, for participating in criminal street gang activity, is sufficient as to both substance and form. “[T]he indictment substantially tracks the language of OCGA § 16-15-4(a) and was sufficient to withstand a general demurrer.” Contrary to defendants’ argument, indictment adequately alleged existence of gang at time of alleged offenses. Based on Rodriguez v. State, 284 Ga. 803 (671 S.E.2d 497) (2009): “the indictment here sufficiently alleged that the criminal street gang was in existence and ongoing at the time of the commission of the enumerated offenses. Moreover, we agree with the State that it was not necessary for the indictment also to contain a specific allegation that the gang