119 Ga. 257 | Ga. | 1903
Johnson was tried under an, indictment charging ' him with the offense of simple larceny, the part thereof descriptive of the offense being as follows: “For that the said Elijah Johnson, on the 30th day of April, in the year of our Lord one thousand nine hundred and three, in the county aforesaid, with force and arms, one hundred and twenty dollars in paper money, to wit, two twenty-dollar bills, five ten-dollar bills and six five-dollar bills, of the personal goods of one Mark Baker, and of the value of one hundred and twenty dollars, unlawfully, wrongfully, and fraudu
It appears from the brief .of evidence,- that, soon after the prosecutor discovered the loss of his pocket-book, the defendant was placed under arrest by one Rowland (who, it would seem, was an officer authorized to make arrests), and kept for two or three hours in custody. Rowland put handcuffs upon the defendant. The former, after the time aboved indicated had elapsed, “ got ready to leave; ” whereupon Johnson asked the prosecutor if he intended to put him (the defendant) in jail, and the prosecutor replied that he intended keeping the defendant where he was until the money was found. Up to this time Johnson had denied having the money. A bystander suggested that Rowland “ would need his handcuffs,” and the prosecutor then went off and got a rope and “ started to tie the defendant, and then he got scared, and, before he would be tied, he went off and dug up the pocketbook and gave it to ” the prosecutor. All that the prosecutor “ threatened to do to the defendant was to tie him and keep him there till ” the money was found; and no one else threatened him. Johnson “got scared when he found that he was not going to be carried to jail by ” Rowland. One of the persons present, who had assisted in making the arrest, told the defendant that it was the intention of those having him in custody “ to keep him there until night,” and that the speaker did not know what they might then do to the defendant. He at once “got scared and went and got” the hidden pocket-book, the prosecutor accompanying him to the place where it had been concealed. The prosecutor testified that the pocket-book dug up was the one he had lost, “and had eighty dollars in gold and one hundred and twenty dollars in paper money in it; ” but upon being- questioned as to the character of the paper money he referred to, he replied: “ I don’t know whether the money was greenbacks, treasury notes, bank-bills or gold or silver certificates; I don’t know what kind they were.” This was the only evidence touching the kind of money which the pocket-book contained. The motion for a new trial came on for a hearing, and was overruled; and Johnson then sued out a bill of exceptions-to this court, assigning error on the refusal of the trial judge to grant a new trial, as well as upon the overruling of the
■ The indictment in this case seems to have been framed under the Penal Code, § 167, which is as follows: “If any person shall take and carry away any bond, noce, bank-bill, due-bill, or paper or papers securing the payment of money or other valuable thing, or any receipt, acquittance, or paper or papers operating as a discharge for the payment of money or other things, belonging to another, with intent to steal the same, he shall be guilty of simple larceny, and be punished by imprisonment and labor in the penitentiary for not less than one year, nor longer than four years, when the property is of the value of fifty dollars or more; and when the property stolen is under the value of fifty dollars, he shall be guilty of a misdemeanor.” Under this section a felony can be charged against a defendant by alleging in the indictment that he committed larceny of “ any bond, note, bank-bill, due-bill, or paper or papers securing the payment of money,” etc., of the value of fifty dollars or more; and the indictment in the present case charged Johnson with stealing paper money, describing it as twenty-dollar bills, ten-dollar bills, etc. It is obvious that it was necessary, in order to make the offense a felony, to charge in the indictment that one of the kinds of paper described in the statute was stolen. This court, in the case of Alle v. State, 86 Ga. 400, held that the “ ordinary meaning of a five-dollar bill is a bank-bill for the payment of five dollars,” and construed the indictment in that case, which alleged the stealing of “ one five-dollar bill of the value of five dollars,” as charging the theft of a bank-bill, in the sense in which that term is used in the statute just mentioned. As a necessary result of the construction thus put upon the indictment in that case, the court further held that “ a person indicted and tried for larceny .from the house, on a charge of stealing in a house one five-dollar bill of the value of five dollars,’ can not be convicted of simple larceny,” for the reason that, the indictment charging only a misdemeanor, a conviction of a felony could not lawfully be had thereunder. See, in this connection, King v. State, 54 Ga. 184. The vital point presented for decision in the Allen case was whether the indictment charged the stealing of a bill such as was
All the other material matters involved in this case are sufficiently dealt with in the headnotes.
Judgment reversed.