A defendant may challenge the indictment by filing a general or special demurrer. “A general demurrer challenges the substance of the indictment, whereas a special demurrer challenges the form of the indictment.” State v. Corhen, 306 Ga. App. 495 (2010); State v. Horsley, 310 Ga. App. 324 (2011). A demurrer must attack problems that appear in the indictment. In raising a demurrer the defendant cannot add facts to prove that the indictment is defective. This is called a speaking demurrer and is not proper. State v. Holmes, 142 Ga. App. 847 (1977). A speaking demurrer is one which alleges some new matter not shown by the indictment and not generally known or legally presumed to be true. State v. Grube, 315 Ga. App. 885 (2012).
A general demurrer challenges the validity of an indictment. Thus, it can be raised at anytime. State v. Eubanks, 239 Ga. 483 (1977). If an accused would be guilty of the crime charged if the facts as alleged in the indictment are taken as true, then the indictment is sufficient to withstand a general demurrer; however, if an accused can admit to all of the facts charged in the indictment and still be innocent of a crime, the indictment is insufficient and is subject to a general demurrer. Lowe v. State, 276 Ga. 538 (2003). A general demurrer can challenge a defect in the indictment affecting the substance and merits of the offense charged, such as a failure to charge a necessary element of the offense. Coleman v. State, 318 Ga. App. 478 (2012).
A motion to quash an indictment is classified as a general demurrer. Traylor v. State, 165 Ga. App. 226 (1983). An indictment cannot be quashed based on sufficiency of the evidence to support it because prior to trial no one knows what the State's evidence will show at trial. State v. Pattee, 201 Ga. App. 690 (1991).
By special demurrer, a defendant claims, not that the charge in an indictment is fatally defective and incapable of supporting a conviction, but rather that the charge is imperfect as to form or that the defendant is entitled to more information. Eubanks v. State, 239 Ga. 483 (1977). A defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance. Each count set forth in an indictment must be wholly complete within itself, and must plainly, fully, and distinctly set out the crime charged in that count. Smith v. Hardrick, 266 Ga. 54 (1995).
When determining whether an indictment [or accusation] is sufficient to withstand a special demurrer, the applicable standard is not whether the indictment [or accusation] could have been made more specific, but whether it contains the elements of the offense intended to be charged, and sufficiently informs the defendant of what he must be prepared to meet. State v. Meeks, 309 Ga. App. 855 (2011). When presented with a special demurrer, the judge should examine the indictment [or accusation] from the perspective that the defendant is innocent. Nevertheless, the language of an indictment [or accusation] is to be interpreted liberally in favor of the State, while the defendant's objections to the indictment [or accusation], as presented in a special demurrer, are strictly construed against the defendant. State v. Corhen, 306 Ga. App. 495 (2010).
"Generally, an indictment [or accusation] which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer." State v. Meeks, 309 Ga. App. 855 (2011); OCGA § 17-7-54 (a). Where the evidence does not permit the State to identify a single date on which the offense occurred, the indictment may allege the offense was committed between two dates, the exact date being unknown to the grand jury. Hutton v. State, 192 Ga. App. 239 (1989). However, the exception does not apply unless the State first presents evidence to the judge showing that it cannot more specifically identify the dates of the alleged offenses. Howard v. State, 281 Ga. App. 797 (2006). If an indictment [or accusation] alleges that a crime occurred between two particular dates, and if evidence presented to the judge shows that the State can reasonably narrow the range of dates during which the crime is alleged to have occurred, the indictment [or accusation] is subject to a special demurrer. State v. Layman, 279 Ga. 340 (2005).
When the exact date of a crime is not a material allegation in the indictment, the State may prove that the crime took place on any date prior to the return of the indictment and within the statute of limitations. Gordon v. State, 327 Ga. App. 774 (2014). If there is a variation from the dates alleged in the indictment and the dates proved at trial, the variance does not entitle a defendant to a new trial unless the variance surprises or prejudices the defendant by depriving him of an alibi defense. Adams v. State, 288 Ga. 695 (2011); Hutton v. State, 192 Ga. App. 239 (1989).
Where a count of an indictment or accusation distinguishes it from all other counts, either by alleging a different set of facts or a different date which is made an essential element of the offense, the State may on conviction punish the defendant for the various crimes. Conley v. State, 281 Ga. App. 841 (2006). However, if the counts of the indictment allege a range of dates identical with that alleged in another count, and provides no additional facts by which it can be distinguished from the other count it is entirely duplicative and subject to a special demurrer. It does not matter that the count alleges that it is separate and distinct from other counts in the indictment.
A defendant may also file a plea in bar alleging that the prosecution is barred from proceeding. A motion alleging the statute of limitations has expired, double jeopardy, or a violation of a defendant's right to a speedy trial are examples of a plea in bar.
A defendant can file a plea of misnomer stating that the name in the indictment is incorrect. The plea of misnomer should state the true name of the defendant, that he had never been known by any other name than that, and that he was not known and called by the name which is contained in the indictment.
Immunity
O.C.G.A. § 16-3-24.2 provides statutory immunity for a person using force that arose in self defense unless the defendant uses a weapon that he was not allowed to carry or possess, for instance because he is a convicted felon. The judge must rule on a motion for immunity prior to trial. Fair v. State, 284 Ga. 165 (2008). The defendant must prove by a preponderance of evidence that he is entitled to immunity. Bunn v. State, 284 Ga. 410 (2008); State v. Green, 289 Ga. App. 802 (2011). The judge may only decide the issue before, not after trial. After trial the judge cannot reconsider his prior ruling. State v. Hipp, 314 Ga. App. 520 (2012).