Eubank v. State, 105 Ga. 612

105 Ga. 612 | Ga. | 1898

Little, J.

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 maliciously sever from the land of Josh Martin and from the land of E. E. Martin, the produce growing on said land, and the property of said Josh Martin, and the property of said E. E. Martin, •said produce being cotton which was then and there growing on said land.” The ease was transferred and tried in the county •court of Pike county, and resulted in a verdict of guilty. The •defendant filed a petition for certiorari, in which he avers that the verdict rendered by the jury and the judgment imposed are •contrary to law and the evidence. The petition further alleges that the court erred in admitting as evidence on the trial of the •case, over his objection, a plat and boundary-lines made by the •county surveyor, under apparently regular proceedings, processioning the land of E. E. Martin, because to the return of the processioners a protest had been filed, and proceedings arising under the protest were then pending in the superior court. The ■petition further alleged, that the court erred in giving to the .jury the following charge: “If you should believe from the testimony that said cotton was growing upon the land of E. E. Martin or Josh Martin, and it was severed therefrom by the •said A. E. Eubank, then you would be authorized to find him .guilty.” Several other grounds of error were set out in the petition, but we do not find it necessary to specifically consider them, as our ruling determines the case in favor of the plaintiff in error, and the determination of the other questions involved is not necessary for the purposes of another trial. On the hearing, the certiorari was overruled, and the plaintiff in error excepted.

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 action of trespass quare clausum fregit, is essentially descriptive of the particular trespass complained of. (2 Greenleaf, Ev. §625.)

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.

All the Justices concurring.