Essential elements of assault with intent to rob were omitted from the indictment which, at most, charged the defendant with a misdemeanor. Thus, the trial judge's action in imposing sentence for a felony was subject to a motion in arrest of judgment.
Alphonso Ponder was indicted for the offense of assault with intent to rob. The indictment charged on June 27, 1969, the defendant "with force and arms, and unlawfully, did then and there unlawfully and maliciously make an assault upon the person of Paul Renfroe and in a forceful and violent manner did throw his arms around the person of the said Paul Renfroe and did cut off the lights in the room in which Paul Renfroe was standing with the intent to commit a robbery upon the person of the said Paul Renfroe."
The defendant was tried, found guilty and sentenced to serve four years. A motion for new trial and a motion in arrest of judgment were filed on behalf of the defendant. Both were overruled. Appeal was taken from these judgements and error is enumerated on the grounds: the court erred in refusing to grant the motion in arrest for the reason that the indictment failed to allege an essential element of the crime charged, to wit, demand; that the court erred in refusing to grant a new trial because there was a fatal variance in the allegations contained in the indictment and the proof offered and that the verdict was contrary to law and without evidence to support it.
A motion in arrest of judgment will be where there is a defect appearing on the face of the indictment affecting the substance and real merits of the offense charged, such as the omission of an essential element of the crime, so that it renders the indictment void. Rambo v. State, 25 Ga. App. 390 (103 SE 494)
; Sims v. State, 37 Ga. App. 819 (142 SE 464)
. Even though no demurrer to the indictment be filed, it is still subject to a motion in arrest. Register v. State, 65 Ga. App. 64 (15 SE2d 251)
; O'Brien v. State, 109 Ga. 51
, 53 (35 Se 112
). If a verdict, when construed with the indictment, does not find the defendant guilty of any offense, the judgment should be arrested. Lanier v. State, 5 Ga. App. 472
, 476 (63 SE 536
). Moreover, as set forth in Cash v. State, 108 Ga. App. 656 (1) (134 SE2d 524)
: "Where a verdict in a criminal case finds the accused guilty of a crime not made in the indictment a motion in arrest of judgment will lie."
Here the indictment does charge the defendant with an offense under the provisions of Code 26-1401 (assault) and 26-1408 (battery). Misdemeanor punishment is prescribed under these Code sections. In Allen v. State, 86 Ga. 399 (12 SE 651), the Supreme Court held that where the indictment and trial were for a misdemeanor and the verdict for a felony, the judgment should be arrested on motion. Since under the indictment here made the only appropriate punishment was for a misdemeanor, the sentence entered thereon was subject to the motion in arrest of judgment.
Judgment reversed. Bell, C. J., and Whitman, J., concur.