☢ test - Í
existed prior to the commission of any of the enumerated offenses, or to include a specific enumerated offense that was committed prior to the commission of any of the enumerated offenses in this case.” State v. Ramirez-Herrera, 306 Ga.App. 878, 703 S.E.2d 429 (November 19, 2010). Trial court’s order granting demurrer, on grounds that State couldn’t prove allegations of indictment, was error. “ The trial court's grant of the demurrer based on the insufficiency of the proffered evidence was erroneous because ‘the State was not required to set out its evidence in response to the demurrer[ ].... When considering a general demurrer, the legal sufficiency of the pleading, not the evidence, is the issue. In fact, a motion seeking to dismiss an indictment on the ground that the State cannot prove facts essential to the charge is analogous to a motion for summary judgment in a civil case, and there is no basis in Georgia criminal practice for what, in civil practice, would be termed a motion for summary judgment.’ (Punctuation and citations omitted; emphasis supplied.) [ State v. Corhen , 306 Ga.App. 495, 700 S.E.2d 912 (September 15, 2010)].” Disapproved on other grounds, State v. Outen , 289 Ga. 579, 714 S.E.2d 581 (June 27, 2011) ( Ramirez-Herrera errs to the extent it allowed direct appeal by State from order granting demurrer on only part of indictment). State v. Shabazz, 291 Ga.App. 751, 662 S.E.2d 828 (June 3, 2008). Trial court properly considered defendant’s demurrer, though filed more than 10 days after arraignment, where it alleged that the indictment was void. “Under OCGA § 17-7-110, all pretrial motions, including demurrers, must be filed within ten days after arraignment or, as in this case, waiver of arraignment. Palmer v. State, 282 Ga. 466, 468 (651 S.E.2d 86) (2007); Dingler v. State, 281 Ga.App. 721, 723(2) (637 S.E.2d 120) (2006). ‘If, however, the indictment or accusation is so defective that judgment upon it would be arrested, attention may be called to this defect at any time during the trial, and it may be quashed on oral motion.’ Pullen v. State, 199 Ga.App. 881 (406 S.E.2d 283) (1991). An accusation is so defective that judgment upon it would be arrested where the accusation charges no offense. Id.; Hilliard v. State, 87 Ga.App. 769, 773-774 (75 S.E.2d 173) (1953). Because Shabazz argued that the accusation in this case failed to charge any offense, the trial court did not err in considering Shabazz’s demurrer on the merits.” Hafez v. State, 290 Ga.App. 800, 660 S.E.2d 787 (March 21, 2008). Trial court properly denied defendants’ general demurrer. Defendants were charged with cruelty to children, second degree, under OCGA § 16-5-70(b). After indictment, the code section was changed to insert a new second degree child cruelty offense as subsection (b), reclassifying defendants’ charged offense as third degree child cruelty and re-codifying it as subsection (c). “Citing Robinson v. State, 256 Ga. 564 (350 S.E.2d 464) (1986), [defendants] argue that they were tried under an indictment that charged them with a violation of law that had been repealed without a savings clause by the General Assembly prior to their trial. But Robinson is not controlling here. As our Supreme Court explained in Daker v. Williams, 279 Ga. 782 (621 S.E.2d 449) (2005): ‘In general, “(w)hen a statute making described conduct a crime is repealed prior to final judgment on a conviction, the repeal ends the prosecution if the legislature has not provided otherwise in a saving clause.” Robinson v. State, 256 Ga. 564, 565 (350 S.E.2d 464) (1986). See also Gonzalez v. Abbott, 262 Ga. 671 (425 S.E.2d 272) (1993); Bassett v. Lemacks, 258 Ga. 367 (370 S.E.2d 146) (1988). In other words, if, due to a statutory amendment prior to the entry of a final judgment on a conviction, the actions for which a defendant was indicted no longer constitute a crime, the prior conviction is abated in the absence of a savings clause providing otherwise. On the other hand, a prosecution may continue towards a final disposition where the actions for which the defendant was indicted were not decriminalized by the subsequent statutory amendment. A conviction may stand if it was authorized both under the original definition of the crime and the revised definition contained in the statutory amendment.’ Id. at 784-785. In this case, the statutory amendment did not decriminalize the actions for which the defendants were indicted. The result of the amendment here was simply to move the language formerly found in subsection (c) of OCGA § 16-5-70 to subsection (d) and change the conduct described therein from second degree to third degree child cruelty. Ga. L.2004, p. 57, § 3. The conduct for which defendants were indicted and convicted remained a crime both before and after the enactment of the statutory amendment. Accordingly, this enumeration is without merit.” 2. MOTION FOR DIRECTED VERDICT Tucker v. State, 283 Ga.App. 428, 641 S.E.2d 653 (February 5, 2007). Trial court properly denied motion for directed verdict. “‘ A motion for directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for a directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment. (Cit.)’ (Punctuation omitted.) McKay v. State, 234 Ga.App. 556, 559(2) (507 S.E.2d 484) (1998). Typically, a challenge to an indictment is made through a demurrer to the indictment. A general demurrer attacks the validity of the indictment. The special demurrer attacks the form of the indictment. See State v. Eubanks, 239 Ga. 483, 486 (238 S.E.2d 38) (1977). While a general demurrer may be raised at any time, a special demurrer must be raised before pleading to the indictment or the right to be tried upon an indictment which is perfect in form and substance
Made with FlippingBook Ebook Creator