I spend a lot of time preparing demurrers in defense of criminal cases. Demurrers present interesting issues in Georgia law, and learning to take advantage of demurrers can create strategic advantages for my clients. Unfortunately, many lawyers do not view demurrers in the same way. The standard approach to demurrers is that the State has 2 opportunities to fix and defect, so there is really no reason to argue demurrers. This sort of pessimistic view toward demurrers could not be more misplaced and the dangers of this standard approach become evidence on appeals from convictions involving clearly defective indictments and accusations in Georgia criminal cases:
Failure to challenge the indictment. As noted in pision 2, the indictment did not allege that the currency Walker stole was the property of another, and Walker's trial counsel failed to challenge this omission. But even if we assume that the indictment was fatally flawed and therefore susceptible to a general demurrer,“the grant of a general demurrer due to a finding that the indictment was void ab initio … does not automatically bar the reindictment of the defendant.”
Moreover, when trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment … is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Upon a proceeding after verdict,no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment … Thus a defendant who was not misled to his prejudice by any imperfection in the indictment … cannot obtain reversal of his conviction on that ground.
Here, the indictment set out the date of the offense and the facts necessary to inform Walker of the charged offense, allow him to prepare his defense, and protect him from double jeopardy for the charged offense. The trial evidence showed no dispute as to the robber's lack of authority to take the money from the Sonic restaurant at gunpoint, so Walker was not misled by the wording of the indictment about the nature of the property he stole. Based on the record before us, this argument presents no ground for reversal.
Walker v. State, 329 Ga. App. 369, 373-74, 765 S.E.2d 599, 604-05 (2014).
If you have questions regarding pre-trial demurrers in a Georgia criminal case, contact The Sessions Law Firm at (470) 225-7710.
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