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Law School Case Brief

Wagner v. State - 282 Ga. 149, 646 S.E.2d 676 (2007)


Where a special demurrer points out an immaterial defect, the trial court should strike out or otherwise correct the immaterial defect. A material defect requires the trial court to quash the defective count of the indictment. A trial court does not err by denying a special demurrer where the defect in an indictment is not material and does not prejudice the defendant's rights. 


A woman was indicted for a felony murder charge, among other charges, but it included the phrase, "intentionally and with malice aforethought", which should appear in a malice murder charge, not a felony murder charge. The State could have charged malice and felony murder in the alternative in the same count but did not. Since the charge mixed those elements rather than charged them in the alternative, the trial court quashed the felony murder count based on a special demurrer filed by the accused. An application for interim review for the consolidated case was filed with the Supreme Court of Georgia.


Were the defects in the demurrer material?




The court found that the fact that the indictment did not state that the victim was a human being was not a material defect and merely required correction. Further, the fact that it was possible that co-defendant committed the murder for the purpose of receiving money, rather than defendant, did not cause the notice of intent to seek the death penalty to be in error and the State merely had to re-notify defendant regarding the statutory aggravating circumstance using the language of O.C.G.A. § 17-10-30(b)(4).

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