Opinion
32187.
DECIDED DECEMBER 3, 1949. REHEARING DENIED DECEMBER 15, 1949.
Certiorari; from Fulton Superior Court — Judge Pomeroy. July 6, 1948. (Application to Supreme Court for certiorari.)
Frank Grizzard, J. F. Kemp, for plaintiff in error.
John I. Kelley, Solicitor, Paul Webb, Solicitor-General, William Hall, Broadus B. Zellars, contra.
Where there is no demurrer to the accusation, charging the defendant with ill-treating a named minor child contrary to law, and the court charges the jury in effect that the accusation was drawn under, and the State contends that the defendant was guilty of a violation of, Code § 26-8001, which the judge gives in charge in the exact language thereof, and then immediately gives in the exact language of the accusation the particular charge set out in it, the instructions, in the absence of a request, sufficiently present the issue which the jury are to try, and no reversible error appears when the charge is considered as a whole. See Prior v. State, 74 Ga. App. 226 ( 39 S.E.2d 559).
DECIDED DECEMBER 3, 1949. REHEARING DENIED DECEMBER 15, 1949.
The plaintiff in error, Edna Roseberry, hereinafter referred to as the defendant, was tried and convicted in the Criminal Court of Fulton County on an accusation in two counts for the offense of ill-treating minor children. The jury trying the case returned a verdict of guilty, and the court imposed a sentence of 12 months on each count, the punishment on count two to follow that on count one.
The defendant filed a petition for writ of certiorari, in which she specifically assigned error on the charge, contending that the court failed to charge certain elements of § 26-8001 of the Code, that is, the element of cruelty, the element of unreasonableness, and the element of malice. Error is also assigned on two excerpts from the charge, one of which applies to count one and the other to count two of the accusation, wherein the court charged in substance that, if the jury believed beyond a reasonable doubt that the defendant did ill-treat the child named in each count of the accusation, as charged therein, which they would have out with them, then they would be authorized to find the defendant guilty on such count or counts. These excerpts from the charge are complained of because they omitted the elements of cruelty, unreasonableness, and malice, leaving the jury free to find a verdict of guilty without regard to these elements, the same not being specifically charged in either count of the accusation.
The judge of the superior court entered judgment overruling the writ of certiorari, and this judgment is assigned as error.
The trial court charged the jury as follows: "Now, gentlemen, of the jury, the State brings this case and contends that the following section of the Code of Georgia has been violated by this defendant which provides as follows: Whoever shall torture, torment, deprive of necessary sustenance, mutilate, or cruelly, unreasonably and maliciously beat or ill-treat any child, or cause any of such acts to be done, shall be guilty of a misdemeanor, and upon conviction of a person of violating that provision of our law, gentlemen, he or she would be punished with a misdemeanor punishment. If you believe beyond a reasonable doubt that this defendant Edna Roseberry in the [County] of Fulton and State of Georgia, on the 25th day of October, 1946, or upon any other date within two years immediately preceding the date of the filing of this accusation, which you will have out with you did ill-treat Marjorie Gordon, a minor child, as charged in count 1 of the accusation you will have out with you, then you would be authorized to find her guilty upon count 1 of the accusation. If, on the other hand, you do not believe the defendant guilty as charged in count 1 of the accusation or if you have a reasonable doubt of her guilt, it would be your duty to acquit the defendant. If you believe beyond a reasonable doubt this defendant Edna Roseberry in the County of Fulton and State of Georgia, on the 15th day of December, 1947, did ill-treat Charlene Stallons, a minor child, contrary to the laws of said State, the peace, good order and dignity thereof and as charged in count 2 of this accusation which you will have out with you, then you should find the defendant guilty on count 2. If, on the other hand, you do not believe the defendant guilty as charged in count 2 of the accusation which you will have out with you or if you entertain a reasonable doubt about it, then it would be your duty to acquit her."
The foregoing quoted portions of the charge of the trial court contain the language of Code § 26-8001, and the exact language of the charging parts of the two counts of the accusation.
It is true that cruelty, unreasonableness, and malice are essential elements of this crime. See Gary v. State, 118 Ga. 17 ( 44 S.E. 817). However, in that case there was a specific request to charge the element of unreasonableness, and the case was reversed for the failure of the court so to charge pursuant to such request.
In the instant case, the defendant joined issue on the accusation by entering a general plea of not guilty thereto. The charging parts of the accusation contain enough to show that it was based on Code § 26-8001, and alleged that the acts complained of were done contrary to law. The court charged the Code section as the law which these acts are alleged to have violated. The validity of the accusation can not be tested by attack upon the charge of the court, where the latter is sufficient even though the former may not be. Where there is no demurrer to the accusation charging the defendant with ill-treating a named minor child contrary to law, and the court charges the jury in effect that the accusation was drawn under, and the State contends that the defendant was guilty of a violation of Code § 26-8001, which the judge gives in charge in the exact language thereof, and then immediately gives in the exact language of the accusation the particular charge set out in it, the instructions, in the absence of a request, sufficiently present the issue which the jury are to try, and no reversible error appears when the charge is considered as a whole. See Prior v. State, 74 Ga. App. 226 (supra).
The judgment of the trial court overruling the certiorari was without error.
Judgment affirmed. MacIntyre, P. J., and Gardner, J., concur.