Dean v. State

6 Ga. App. 250 | Ga. Ct. App. | 1909

Russell, J.

Two contentions are raised by the counsel for the plaintiff in error. He insists that the State failed to prove the venue; and also that it failed to prove the identity of the steer alleged to have been stolen. The steer is described in the indictment as “one yellow-colored steer with white spots on his body and a white spot in his forehead.” It is true that all the witnesses except one swore that the steer that belonged to the prosecutor and which was afterwards found in the possession of Mr. Brinson was a red steer, with white spots on his body and a white spot in his forehead. Even the prosecutor himself testified that he would not call the steer a yellow steer, but he denominated him as being of a dull red color, though he further said that some people would call him a yellow-colored steer. The witness Powell, however, testified positively that he was a yellow steer, with a white spot in his forehead and white spots on his flanks; and this witness testified that he was with the prosecutor when the steer was found in Brinson’s pasture. This testimony, when taken in connection with the statement of the prosecutor, that some people might call the steer a yellow steer, was sufficient, if preferred by the jury, to fix the id entity of the steer in question and establish it as the same steer described in the indictment. And when it is borne in mind that all the witnesses testified as to the white marks on the animal’s side, and the spot on his forehead, the jury were authorized to find that the allegation of the indictment, descriptive of the animal stolen, was substantially proved.

The most that can be said as to the point that the venue was not shown is that the testimony of several of the witnesses upon, that point is insufficient. But the testimony of Steve Ivy is positive and sufficient. He swore that he helped the defendant drive the steer in question to the defendant’s home, and that they found the steer on Boykin’s drain in Miller county.

There was no error in refusing a new trial.

Judgment affirmed.