37 S.E.2d 700 | Ga. | 1946
Ownership of property alleged to have been stolen is properly laid in the indictment as of the date of the theft, and this is true even though the owner died subsequently to the theft and prior to the indictment. The accused is not entitled to an acquittal because the owner of the property, and the person in whom the indictment laid ownership, died between the time of the larceny and the indictment found. An indictment alleging ownership as of the date of the offense speaks as of that time.
With respect to the question now dealt with, we must decide whether ownership of stolen property is properly laid in the indictment as of the date of the taking of the property or at the time of the indictment, where the person whose property is taken dies after it is taken but before the return of the indictment. An indictment charging larceny must allege the time when the property was taken, but time, not being of the essence of the offense, need not be precisely or exactly laid, it being sufficient if laid before the return of the indictment, and within the statute of limitations, and proof of the commission of the act charged at any time within those two periods will be sufficient. 2 Wharton on Criminal Procedure, 1143, § 815.
In Lawson v. State (supra), which was cited in connection with the instant question, the statement of facts in that case does not show with certainty whether the owner was dead at the time his property was taken or died a few minutes afterwards. However, the learned judge who delivered that decision for his division of the Court of Appeals said: "Thus we think under the general rule in larceny cases where, as in the instant case, the evidence authorized a finding either that the money was stolen from Eaton a few minutes before his death or a few minutes after his death, and the indictment was not found until two months thereafter, and the allegation in the indictment was that the property stolen was the property of Eaton, and the evidence showed that at the time of the filing of the indictment Eaton was dead, there was a fatal variance between the allegata and probata for the reason stated in United States v. Mason [2 Cranch (D. C.)], supra, that a dead man could not have goods and chattels, and that therefore the indictment could not be supported." The Mason case, however, differs on its facts from those we now deal with because in that case the owner of the property taken died prior to the theft. We have carefully examined all the authorities relied on by the Court of Appeals for its holding, and with the exception of the Davis case (
From the weight of authority on criminal law and procedure, we think that ownership of property stolen may be properly laid in the owner as of the date of the offense, and not withstanding the fact that the owner may have died after the theft and before the return of indictment. In 2 Wharton on Criminal Procedure (10th ed.), 1214, § 875, it is said: "In alleging ownership of personal property charged to have been stolen, the careful pleader will do so directly and unequivocally as of the time of the commission of the offense." In 12 Cyc. Pl. Pr. 958, § 3, the rule is stated as follows: "Ownership must be alleged directly and not by way of inference, and is properly laid as of the date when the offense was committed." And in 32 Am. Jur. 1025, § 113, we find this statement of the rule: "It is well settled that the ownership may be laid either in the real owner or in the person in whose possession the property was at the time of the theft." We have examined cases on this subject from a large number of States, and this seems to be the universally accepted rule. The Supreme Court of *566
Alabama in Fowler v. State,
Our view of the law, as herein expressed, requires us to answer the question in the negative. All the Justicesconcur.