State v. Daniels
State v. Daniels
Opinion of the Court
The state appeals the dismissal of several counts of two indictments charging Antonio Daniels as a party to the crime of aggravated assault allegedly committed with a co-defendant, Alfarus James Clay. We affirm the dismissal as to the first indictment, no. 05R644, but reverse the dismissal as to the second indictment, no. 05R754. Accordingly, we affirm the judgment in Case No. A06A0953 and reverse the judgment in Case No. A06A0954. The cases are consolidated for disposition in a single opinion, and the relevant facts follow.
The first indictment, no. 05R644, returned by the grand jury on June 22, 2005, charged Daniels in Counts 5, 6, and 7, as a party to the crime of aggravated assault in that he “did encourage, aid, or abet... Clay and others by informing them that the victim . . . was in possession of a sum of cash, with knowledge that they were looking for someone to rob.”
The superseding indictment,
did encourage, aid, or abet . . . Clay and others ... by informing them that the victim Ricky Barnes was in possession of a sum of cash, with knowledge that . . . Clay and others unknown were looking for someone to rob, therefore . . . Clay and others unknown . . . entered the residence . . . , Clay was in possession of a firearm, a weapon which when used offensively is likely to cause serious bodily injury and did assault . . . Barnes with said handgun by shooting [him] in the leg.
Counts 7, 8, and 9 were worded similarly with regard to Daniels, but alleged that Clay assaulted Barnes by hitting him with the gun (Count 7) and pointing the gun at his head (Count 8), and that Clay assaulted a second victim by pointing the gun at her head (Count 9).
Daniels filed a general demurrer to Counts 5, 6, and 7 of the first indictment on the ground that those counts failed to set out the elements of aggravated assault. Apparently, he filed a general demurrer to the superseding indictment as well, but that document is
1. The state argues that the trial court erred in sustaining Daniels’ general demurrer to Counts 5, 6, and 7 of the original indictment. We disagree. First, the state cannot complain, because any error in the trial court’s dismissal of the first indictment was induced by the prosecutor’s offer to nolle pros that instrument. It is well settled that induced error is impermissible and furnishes no ground for reversal.
In any event, the trial court properly quashed the indictment as to Daniels because it failed to set forth the elements of aggravated assault, the crime to which Daniels was charged with being a party.
A criminal indictment which does not recite language from the Code must allege every essential element of the crime charged. Furthermore, each count set forth in an indictment must be wholly complete within itself, and plainly, fully, and distinctly set out the crime charged in that count. Aggravated assault has two essential elements: (1) an attempt to commit a violent injury, or an act that places another in reasonable apprehension thereof, and (2) that the assault*226 was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon.6
Finally, “[a]negations set forth in one count of an indictment cannot be imputed to a separate count, absent specific reference to the allegation sought to be imputed.”
2. The superseding indictment does not suffer the same fatal flaw as the original indictment.
The true test of the sufficiency of an indictment that will withstand a general demurrer is as follows: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premises, the guilt of the accused follows as a legal conclusion, the indictment is good.8
The counts of the superseding indictment to which Daniels demurred charged him
with the offense of Party to the Crime of AggravatedAssault; for that the said accused . . . did encourage, aid or abet. . . Clay and others by informing them that the victim . . . was in possession of a sum of cash, with knowledge that... Clay and others unknown were looking for someone to rob, therefore ... Clay was in possession of a firearm, a weapon which when used offensively is likely to cause serious bodily injury and did assault [the victims] with said handgun [by shooting Barnes in the leg, hitting him with the gun, pointing the gun at his head and pulling the trigger, and pointing the gun at the second victim’s head].
Moreover, the elements of aggravated assault were sufficiently set out in Counts 6, 7, 8, and 9 of the superseding indictment. Under OCGA § 16-5-21 (a), “[a] person commits the offense of aggravated assault when he or she assaults: (1) [w]ith intent to murder, to rape, or to rob; [or] (2) [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”
*227 [w]hen a defendant is charged with the violation of a penal statute containing disjunctively several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively if it charges more than one of them.12
Judgment affirmed in Case No. A06A09S3. Judgment reversed in Case No. A06A0954.
An indictment obtained without the dismissal of a previous indictment is a superseding indictment. Smith v. State, 279 Ga. 396 (1) (614 SE2d 79) (2005); Larochelle v. State, 219 Ga. App. 792, 794 (2) (466 SE2d 672) (1996).
Although the record on appeal does not contain a general demurrer to the superseding indictment, the trial court’s order recites that Daniels filed one, and the state in its appellate brief recites that such was filed. As an indictment may be quashed on oral motion, Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993), the absence of the written general demurrer from the record does not affect the outcome.
See State v. Finkelstein, 170 Ga. App. 608, 609 (2) (317 SE2d 648) (1984).
Compare State v. Roberts, 234 Ga. App. 522, 523 (2) (507 SE2d 194) (1998) (counts of indictment charging defendant as party to crime specifically alleged facts constituting child molestation and cruelty to children; order quashing indictment reversed).
(Punctuation and footnote omitted.) Smith v. Hardrick, 266 Ga. 54, 55 (1) (464 SE2d 198) (1995).
(Punctuation omitted; emphasis in original.) State v. Bolman, 222 Ga. App. 534 (474 SE2d 721) (1996), citing Smith v. Hardrick, supra.
(Footnote omitted.) Smith v. Hardrick, supra at 56 (3). See also Polk v. State, 275 Ga. App. 467, 468-469 (1) (620 SE2d 857) (2005).
(Citation and punctuation omitted; emphasis supplied.) Dunbar, supra.
OCGA§ 16-2-20 (a), (b).
See Roberts, supra (“[a]iding, abetting and encouraging plainly denotes knowledge on the part of the accused”).
OCGA § 16-5-21 (a); see also Thompson v. State, 277 Ga. App. 323 (1) (626 SE2d 825) (2006).
(Punctuation and footnote omitted.) Gutierrez v. State, 235 Ga. App. 878, 882 (3) (510 SE2d 570) (1999).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.