Hall v. State

120 Ga. 142 | Ga. | 1904

LamaR, J.

The intent of Penal Code, § 186, was to make the stealing of baled cotton a felony regardless of its value, or of whether it was taken from a house or from within the curtilage, or whether the elements of burglary were present or not. It made the place where the cotton was located or stored immaterial. Moseley v. State, 74 Ga. 404. Venue of the crime was the only locality that had to be alleged and proved. Therefore the allégation that the cotton was under the ginhouse of Johnson and near the press under the ginhouse was mere surplusage, and not descriptive of any material element of the crime. The proof must identify the particular bale alleged to have been stolen, but it made no difference whether it was taken from one room or another, or from one end or the other of the open space under the building. There was ample evidence to show that the cotton described in the indictment was taken from under the ginhouse where it had been located; and it was unnecessary to prove that it had been placed near the press, even if as a matter of law nearness to the press was not involved in the proof that it was taken from che building containing the same. This case does not come within the rule that an immaterial description of a material fact must be proved, but, place being unimportant, it was rather an instance of an immaterial description of an immaterial fact. Besides what was contained in the- statement of the defendant, there was some evidence that he bought the cotton; and he was therefore entitled to the charge requested in writing, that if instead of stealing he bought from one who had stolen, he could not be convicted under this indictment. Nor was the failure to give this charge cured by anything contained in the general charge, which was confined exclusively to a statement of the law applicable to the crime defined in the Penal Code, § 186; and omitted any reference to defendant’s theory. This error requires the grant of a new trial; and the judgment is Reversed.

All the Justices concur.