Opinion
43162.
SUBMITTED NOVEMBER 8, 1967.
DECIDED JANUARY 25, 1968.
Child molestation. Rabun Superior Court. Before Judge Smith.
John G. Davis, for appellant.
Herbert B. Kimzey, Solicitor General, for appellee.
The indictment charging accused with molestation of a child in the terms and language of the statute (Ga. L. 1950, pp. 387, 388, as amended by Ga. L. 1953, Nov. Sess., pp. 408, 409) was sufficient.
SUBMITTED NOVEMBER 8, 1967 — DECIDED JANUARY 25, 1968.
The indictment charged that "accused on the 30th day of March in the year 1966, in the county aforesaid, did then and there, unlawfully and with force and arms, take improper, immoral and indecent liberties with the body of . . . a minor under 14 years of age, with intent of arousing, appealing to and gratifying the lust and passions and sexual desires of him, the same accused, and of said female child, and did commit lewd and lascivious acts upon and with the body and parts of the body of said child with intent of arousing and appealing to and gratifying the lust and passions and sexual desires of him, the said accused, and of said child."
The first ground of demurrer contended that the indictment was insufficient for failure to particularize the acts charged.
"Every indictment or accusation . . . shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury. . ." Code § 27-701. "This means that an indictment conforming substantially to the requirements of this section will be sufficient, but it is not designed to deny to the accused the right to know enough of the particular facts constituting the alleged offense to enable him to prepare for trial." Mell v. State, 69 Ga. App. 302, 303 ( 25 S.E.2d 142); Johnson v. State, 90 Ga. 441, 444 ( 16 S.E. 92). Thus there are exceptions to the principle stated in Code § 27-701. See Burkes v. State, 7 Ga. App. 39 ( 65 S.E. 1091); Youmans v. State, 7 Ga. App. 101, 113 ( 66 S.E. 383); Roughlin v. State, 17 Ga. App. 205, 207 ( 86 S.E. 452).
One of the exceptions, argued by defendant, is that where the statutory definition of an offense includes generic terms, the indictment must state the species of act charged; it "must descend to particulars." Harris v. State, 37 Ga. App. 113, 114 ( 138 S.E. 922); Roberts v. State, 54 Ga. App. 704, 705 ( 188 S.E. 844); Ramsey v. State, 85 Ga. App. 245, 247 ( 69 S.E.2d 98). But the offense of indecent molestation of a child as defined by the Act of 1950 (Ga. L. 1950, pp. 387, 388, as amended by Ga. L. 1953, Nov. Sess., pp. 408, 409; Code Ann. § 26-1301a) does not come within this exception.
The words "immoral, improper or indecent liberties" and "lewd or lascivious act" are used to describe an act done "with intent of arousing, appealing to, or gratifying the lust or passions or sexual desires." Code Ann. § 26-1301a. We think the terms of the statute on which the indictment is based distinctly individuate the defined offense and that the use of those terms in the indictment is sufficient to give defendant reasonably certain notice of the specific acts charged and thus enable him to prepare his defense. Bute v. Illinois, 333 U.S. 640, 645, ftn. 3 ( 68 SC 763, 92 LE 986); People v. Scattura, 238 Ill. 313 ( 87 NE 332); People v. Sims, 393 Ill. 238 ( 66 N.E.2d 86); State v. Kernan, 154 Iowa 672 ( 135 N.W. 362); State v. Schumacher, 195 Iowa 276 ( 191 NW 870); State v. Prejean, 216 La. 1072 ( 45 So.2d 627).
All those cases dealt with indictments in the terms of statutes similar to the Act of 1950.
It has been broadly held that an indictment may charge lewd and lascivious conduct in general statutory terms without particularizing details which would be offensive to decency. See 4 Wharton's Criminal Law and Procedure, 626 (1957 Ed.), § 1797. And in the case of Clifton v. State, 53 Ga. 241, 244 (8), the court held sufficient an indictment charging defendant merely with the act of maintaining and keeping a lewd house. But indictments in general terms must be regarded with extreme caution in this State, as there is no provision in our law for furnishing a defendant in a criminal case with a bill of particulars on demand as in many other jurisdictions. The basis of the holding here is that the terms used were sufficiently specific to inform defendant of the acts charged.
2. The second, third, and fourth grounds of demurrer, not having been argued, are treated as abandoned.
Judgment affirmed. Pannell and Whitman, JJ., concur.