Barnes v. State
25 Ga. App. 555
Ga. Ct. App.
1920
Check Treatment
Broyles, C. J.

The verdict was authorized by the evidence, and none of the special grounds of the motion for a new trial shows reversible error.

Judgment affirmed.

Luke and Bloodworth, JJ., concur. The special grounds of the motion for new trial were as follows: “ Because, as movant contended on the trial and now contends, the venue of the alleged offense was not sufficiently proved.” The verdict is contrary to law and without evidence to .support it, in that the charge is simple larceny, and the evidence, if showing a larceny at all, shows one from the person, and not simple larceny; for, to constitute a larceny, the evidence must show the money still in the control and possession, and so near the person as to be entirely within his control and not out of his possession; if the money had passed actually out of his possession, so that it might become the subject of any larceny other than from the person, then, under the evidence, such passing out of his possession was with his knowledge and consent and not privately done. The court erred in the following charge to the jury: “There has been some evidence submitted to you, documentary evidence, for the purpose of impeaching the witness Riggs;” the error being in the use of the words “documentary evidence” alone, while the strongest evidence offered to impeach the witness - was oral testimony. The court erred in charging: “ It would be immaterial whether the crime, if there was one, occurred in this county or some other county,.if the property was brought into this county by the defendant, and he intended to hold possession of it, this would be the proper venue of the crime.” This was error because not a correct statement of law, and further in direct conflict with the former charge of the court that it was incumbent upon the State to show that the crime occurred in this county. The court erred in charging: “ If you find there was any plan, scheme, device, or fraud practiced upon Biggs by the defendant for the purpose of getting possession of this money for the purpose of stealing the same, and the defendant did take and carry it away under those circumstances, he would be guilty.” This was error because it made larceny conditioned upon the carrying away of the money, when, as a matter of law, larceny is first a wrongful and fraudulent taking- and then carrying away; the wrong and the fraud and the intent to steal applying to the taking, the covering into possession of the defendant the stolen property, and the carrying away being merely evidentiary of the purpose and intent with which the thing was taken. The court erred in charging: “If there was such a game on, and had not been completed, and he took the money away before it was determined who was the winner, with intent to steal the same, it would still be larceny.” This was error because not the law, because it eliminated, from those things necessary for the State to prove, a wrongful and fraudulent taking. M. B. Eubanks, for plaintiff in error. J. F. Kelly, solicitor, contra.