Opinion
35981.
DECIDED JANUARY 10, 1956.
Unlawfully cutting timber. Before Judge Paschall. Bartow Superior Court. September 23, 1955.
Percy A. Bray, George T. Bagby, John J. Perren, for plaintiff in error.
1. Every defendant in a criminal case has the right to be tried upon an indictment or accusation perfect in form and substance. Youmans v. State, 51 Ga. App. 373 ( 180 S.E. 495), and citations.
2. An indictment or accusation must allege, or in some manner show, the venue of the alleged offense so as to show that it was committed within the jurisdiction of the court. Smith v. State, 63 Ga. 168; Sanders v. State, 59 Ga. App. 754, 756 ( 2 S.E.2d 137).
3. Where, in an indictment charging the defendants with unlawfully cutting timber "in the county aforesaid," it appears that the indictment is headed, "State of Georgia, Bartow Superior Court," and it further appears the grand jurors "sworn, chosen and selected for the county of Barrow," charge the defendants with the crime, the indictment is so ambiguous in its statement of the jurisdiction as not to enable the defendants to properly prepare their defense; and, where it appears that a timely written special demurrer was lodged against the indictment before arraignment of the defendants in which this defect was specifically pointed out, the indictment should have been quashed, as indictments are not amendable. Goldsmith v. State, 2 Ga. App. 283, 284 ( 58 S.E. 486).
4. As the trial court in the present case erred in overruling the demurrer to the indictment all further proceedings were nugatory.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
DECIDED JANUARY 10, 1956.
The defendants were tried and convicted in the Superior Court of Bartow County under the following indictment: "State of Georgia. Bartow Superior Court. Oct. Term 1951. The grand jurors, sworn, chosen and selected for the County of Barrow to wit: . . . [Here appear the names of the grand jurors.] In the name and behalf of the citizens of Georgia, charge and accuse Guy Robinson, J. L. Turner and H. C. Turner with the offense of misdemeanor. For that the said . . . [defendants, naming them] on the 1st day of Aug. in the year nineteen hundred and fifty-one, in the county aforesaid, did then and there, unlawfully and with force and arms, enter upon the uninclosed lands of Harold Boggs, the owner thereof, the same being the east one-half of land lot 164, lots of land numbers 137 and 138 in the 16th district and 3rd section of said county, and did then and there cut and remove certain timber on said lands, to wit: 500 pine trees, without having, when the aforesaid cutting and removing was done, on record in said county, a deed of conveyance to the same, prima facie showing title in the said . . . [defendants] to said lands and without having a written contract from some person or persons, company or corporation who have on record in said county deeds of conveyance in the person or persons, company or corporation entering into said contract, contrary to the laws of said State, and the good order, peace and dignity thereof." (Italics and brackets by the court.)
By timely written special demurrers, the defendants demurred to the indictment on the grounds that the Superior Court of Bartow County had no jurisdiction to try the defendants under an indictment returned by the grand jury of Barrow County, that the indictment was too vague as to venue to enable the defendants to prepare for their defense, and that the indictment does not follow the form for which provision is made in Code § 27-701. The trial court overruled the demurrers, and error is assigned thereon in the bill of exceptions. The defendants' motion for a new trial, based on the usual general grounds and six special grounds, was denied, and error is also assigned upon that judgment.