Horton v. State, 21 Ga. App. 120

Horton v. State

21 Ga. App. 120 | Ga. Ct. App. | 1917

Lead Opinion

Harwell, J.

The accusation charged the accused with the lar-' eeny of "one copper metal syrup pan, of,the personal goods of Gilmore Thomas, Lee Boyer and Murray Harper, in the possession of Gilmore Thomas.” The evidence on the trial showed that the syrup pan was the joint property of Gilmore Thomas, Albert Boyer, and Harry Harper, though in the possession of Gilmore Thomas. In a prosecution for larceny the ownership of the property alleged to have been stolen must be laid, if known, in some person or’persons. Randolph v. State, 16 Ga. App. 338 (85 S. E. 358); Buffington v. State, 134 Ga. 34 (53 S. E. 19). Being an essential allegation, it must be proved as laid in the accusation. In the instant case there is a fatal variance between the accusation and the proof as to the ownership of the property. Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); Grant v. State, 130 Ga. 199 (47 S. E. 534); 35 Cyc. 93, 103; Parmer v. State, 41 Ala. *121416; Atkins v. State, 44 Tex. Crim. 291 (70 S. W. 744). For this reason the court erred in refusing the defendant' a new trial. In the second ground of the amendment to the motion for a new trial it is insisted that the court erred in failing to charge the law of circumstantial evidence. There was evidence that the syrup pan was carried off across the field of the defendant, an.d that the tracks of the parties who carried it off led to the defendant’s house, and evidence showing where the pan was torn up in the swamp, and other circumstances connecting the defendant with the commission of the crime. One of the witnesses testified that the defendant 'told him that he had had the pan; that he got it out from under the shelter himself and carried it down across the field a little piece, and then went back and got his brother; and he further testified that defendant had endeavored to get him to swear that he, the defendant, was at the witness’s house on the night of the larceny. There being evidence of a confession, and other circumstances connecting defendant with the perpetration of the crime, the failure of the court to give in charge the law of circumstantial evidence was not error. Griner v. State, 121 Ga. 614 (49 S. E. 700); Perry v. State, 110 Ga. 234 (36 S. E. 781). See also Nolles v. State, 127 Ga. 213 (5) (56 S. E. 125); Hegwood v. State, 138 Ga. 274 (75 S. E. 138). The judgment of the court belotv, overruling the motion for a new trial, is reversed solely because of the fatal variance between the accusation and the evidence as to the ownership of the property.

Judgment reversed.

Broyles, P. J., and Bloodworth, J., concur..

Concurrence Opinion

Broyles, P. J.,

specially concurring. It is with some reluctance that I concur in the judgment reversing the judgment of the lower court in this case. I heartily agree with Mr. Justice Cobb’s language in Thomas v. State, 125 Ga. 286 (54 S. E. 182), that "those who enter dwelling-houses and steal therefrom will not he permitted to raise hice and delicate questions as to the title of the article stolen.” If the accusation in this case had simply charged that the stolen property belonged to Gilmore Thomas, this allegation would have been sustained by proof that the property belonged jointly to him and other persons, and was in his actual possession or control when stolen (Waters v. State, 15 Ga. App. 342 (83 S. E. 200), and authorities there cited), or that it belonged exclusively to other persons if he had actual lawful possession of *122it when, the larceny occurred. Wimbish v. State, 89 Ga. 294 (15 S. E. 335); Bradley v. State, 3 Ga. App. 633 (58 S. E. 1064). However, the accusation having charged that the stolen property belonged to “Gilmore Thomas, Lee Boyer, and Murray Harper, in the possession of Gilmore Thomas,” and the proof showing that although the property was in the possession of Gilmore Thomas it belonged.to Gilmore Thomas, Albert Boyer, and Harry Harper, I am forced to admit that, under the common law (which in this particular has not been changed by any statute of this State), this variance is fatal, and that the conviction of the defendant is contrary to the law and the evidence.