Hansford v. State , 54 Ga. 55 ( 1875 )

Trippe, Judge.

1. The tenor of the decisions of this court has been that the common law rule that in misdemeanors there were no principals in the second degree, has never been changed by statute; and in Lewis vs. The State, 33 Georgia, 137, it was very strongly intimated that had it been necessary to put the judgment on that ground, it would have been so held : See McCoy vs. The State, 52 Georgia, 287.

2. If, however, one be charged as such principal, and the acts alleged in the indictment would make him guilty as one of the real perpetrators of the misdemeanor, the words, “principal in the second degree,” are surplusage, and do not vitiate the indictment. The defendant is fully put on notice of what he is charged with, and it does not fall within the reason of the rulings that one charged as principal in the first degree cannot be found guilty as principal in the second degree, or as accessory after the fact: 36 Georgia, 222; McCoy vs. The State, supra.

3. It was held in McLane vs. The State, 4 Georgia, 335, that if the offense appears on the face of the indictment to be barred by the statute of limitation in reference thereto, and some exception in the statute is relied on to preveut its bar, such exception should be alleged in the indictment. We are not aware that this case has been overruled, or that it is affected by any subsequent statute.

4. In this case such an exception was charged to exist and to apply to four of the defendants, to-wit: that it was not known until a short time before the finding of the bill that they were the parties who were guilty of the assault and battery, they being masked, etc., when they committed it. But no reason is given why the other defendant, the plaintiff in error, had not been heretofore prosecuted. It is not charged that his guilt was concealed. Nor does the fact that those whom he aided and abetted, or procured and assisted to commit the offense, were unknown, show- that his participation was not known by the prosecutor as well as by the public. It may be, and probably is true, that it was concealed, but the principle ruled in McLane vs. The State, supra, makes it necessary that it should be so charged in the indictment. The ■defendant may have procured others to act or aid in the commission of the offense, unknown to the grand jurors or the prosecutor, and yet he could have been indicted and convicted -on such allegation and proof as well as if all were known. There is no reason why the rule requiring an indictment to show ■on its face such exception as would take the case out the limitation act should not apply to this defendant as well as the -others, and the court erred in not so holding.

■Judgment reversed.