State v. Austin

An aggravated assault count, which tracked O.C.G.A. § 16-5-21 a 2, contained the elements of aggravated assault and described the alleged criminal act-striking a patient in the head with a metal instrument on a certain date-was sufficient to withstand the defendant's demurrer.

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The state brought a 12-count indictment against Gordon Trent Austin, charging him with multiple counts of simple battery, aggravated assault, and cruelty to children. Citing inadequacies in the indictment, Austin moved to quash the charging instrument and specially demurred to its allegations. The trial court granted Austin’s motion as to the aggravated assault charge in count nine. The state appeals, and we reverse. “The purpose of an indictment is to enable the defendant to prepare his defense intelligently and to protect him from double jeopardy.”1 An indictment is technically correct and sufficient if it states the offense in the terms and language of the Code or in language so plain that jurors understand the nature of the charged offense.2 Thus, the true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.3 At issue in this appeal is count nine of Austin’s indictment. That count alleges that on or about February 22, 2008, Austin, who apparently is an oral surgeon,

did make an assault upon the person of Corey Beasley, with a metal object, to wit: a dental elevator, which, when used offensively against a person, is likely to result in serious bodily harm by striking Corey Beasley on the head with said dental elevator, contrary to the laws of the State of Georgia, the good order, peace and dignity thereof. The trial court quashed count nine after concluding that the state failed to sufficiently allege intent. According to the trial court, this failure was fatal to the charge, rendering it legally insufficient. We disagree.

State v. Austin

An aggravated assault count, which tracked O.C.G.A. § 16-5-21 a 2, contained the elements of aggravated assault and described the alleged criminal act-striking a patient in the head with a metal instrument on a certain date-was sufficient to withstand the defendant's demurrer.

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