Wagner v. State

Mixing the elements of malice murder and felony murder by including the phrase ' :intentionally and with malice aforethought" ' in the felony murder charge was a material defect requiring the court to quash the felony murder charge of the indictment.

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Crystal Mae Wagner has been indicted for murder, felony murder, and concealment of a death.1 The crimes allegedly occurred on February 10, 2005. The State has given notice of its intent to seek the death penalty. This Court granted Wagner’s application for interim review and directed the parties to address five issues. Wagner has raised two additional issues. As set forth below, we reverse the trial court’s overruling a demurrer to Count Two of the indictment, affirm with direction as to Counts One and Three, and affirm as to all other issues raised. 1. Count Two of Wagner’s indictment attempts to charge felony murder, but it includes the phrase, “intentionally and with malice aforethought,” which obviously should appear in a malice murder charge, not a felony murder charge. See OCGA § 16-5-1. The State could have charged malice and felony murder in the alternative in the same count. See Leutner v. State , 235 Ga. 77, 79 2 218 SE2d 820 1975. However, the charge at issue here mixed those elements rather than charging them in the alternative.

In Bailey v. State , 280 Ga. 884 635 SE2d 137 2006, we found no error in the trial court’s denial of a motion to quash an indictment because “the misspelling of the grand juror’s name was not a material defect and because it is obvious that Bailey will not suffer prejudice from the error.” Id. at 885. In so holding, we relied on prior case law in which this Court affirmed on pre-trial appeal a trial court’s refusal to quash an indictment containing the misspelling of an illegal drug because the indictment, even with the misspelling, “remained ‘sufficient to put appellant on notice of the alleged offense.’ Cit.” Id. at 884-885. We also reiterated that a trial judge, in response to a special demurrer, should “strike out the erroneous portion of an indictment where the matter stricken is ‘immaterial.’ Cit.” Id. at 884. Thus, we distinguished our prior case law describing the right to a “perfect” indictment upon the filing of a special demurrer. Id. at 884.

Wagner v. State

Mixing the elements of malice murder and felony murder by including the phrase ' :intentionally and with malice aforethought" ' in the felony murder charge was a material defect requiring the court to quash the felony murder charge of the indictment.

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