I concur in the result, but not in all that is said in sustaining the lower court in overruling ground 1 of the demurrer to the indictment. I do not think the indictment is bad for the reason assigned in the first ground of the demurrer. But if it had been error to overrule this ground of the demurrer for the reason assigned I am not prepared to say that such an error would not have been harmful. The subsequent progress of the case would not have entirely eliminated the feature of the case to which this particular alleged erroneous allegation refers, to wit: "and in such a manner to be in wilful and wanton disregard of the safety of persons and property." If, as contended, the allegation in question was erroneous in that it was too vague and indefinite to enable the defendant to prepare his defense and the jury to understand its nature and was subject to demurrer, then the overruling of the *Page 142 demurrer would not have been harmless. The evidence and the defendant's statement made a sharp issue as to the truthfulness of the alleged erroneous allegation referred to. "This doctrine of no reversal for harmless error is one that is capable of great abuse, as well as of very just and advantageous use by reviewing courts." Hall v. State, 8 Ga. App. 747, 752 (70 S.E. 211). Code § 27-701 "was not intended to dispense with the substance of good pleading, nor to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial, nor to deprive him of the right to have an indictment perfect as to the essential elements of the crime charged." O'Brien v. State, 109 Ga. 51,53 (35 S.E. 112). Code § 27-1601 declares: "All exceptions which go merely to the form of an indictment shall be made before trial." This "necessarily means that such exceptions, if well founded and so made, will be good." Johnson v. State,90 Ga. 441, 445 (16 S.E. 92).
A defective indictment can not be helped out by the evidence at the trial or aided by argument and inference. O'Brien v.State, supra. I do not think the doctrine of harmless error is applicable in the instant case. However, I think that the indictment was not subject to demurrer for the reason assigned.