105 Ga. 612 | Ga. | 1898
The plaintiff in error was indicted in the superior, court of Pike county for the offense of trespass, under §717 of the Penal Code. The indictment charged the particular act of trespass to be, that the defendant did “wilfully and mali
The charge of the court complained of was error. The bill -of indictment charged one act of trespass, and that act as having been committed on the land of Josh Martin and E. E. Martin. The evidence distinctly showed that Josh Martin did not own the land upon which the trespass was alleged to have been committed, but that E. E. Martin did. The former testified that he had no interest in it, nor in the crops grown on the land in the jear the trespass was alleged to have been committed. In ■a civil action for trespass, Mr. G-reenleaf says, a variance in the description of the locus in quo is available to the defendant, under the plea of not guilty, as the allegation of place, in an ac
Criminal laws are to be strictly construed, and in charging an offense which involves the liberty of a citizen, all the avermentswhich go to make up the charge must be proven as made; otherwise the accused would not be put on notice of what he was-called on to answer, and would have no opportunity to prepare his defense. In general, a variance in the proof of ownership-will vitiate the indictment. 1 Bishop, New Cr. Proc. §582. See also authorities cited in the same volume, p. 309.
The exception taken to the admission of the plat and return of the processioners can not be considered, because no specific-objection appears to have been made to its admission. It maybe stated, however, in passing, that such papers are not held, even prima facie correct where a protest has been filed to the-return and is pending; and the return does not become conclusive until made the judgment of the court. Howland v. Brown, 92 Ga. 513.
Because of the error in the charge, as above set out, the judgment of the court below in overruling the certiorari is
Reversed.