29 Ga. App. 363 | Ga. Ct. App. | 1923
The indictment in this case charges that the accused did “buy and receive from Wilburn Woods and Lawson Fowler 250 lbs. of ordinary short-staple cotton, picked and in sacks, of the value of seven cents per pound, the personal goods and private property of Ií. B. Allen and T. J. Allen, said cotton having been falsely, fraudulently, and feloniously taken and carried away by Wilburn Woods and Lawson Fowler from a'certain cotton-house of said H. B. Allen, with the intent to steal the same, the said J. H. Rogers then and there knowing said cotton had been stolen and feloniously taken as aforesaid, and said Wilburn Woods having been convicted of the offense of simple larceny, and Lawson Fowler having been convicted of the offense of larceny from the house in connection with the taking and stealing of said cotton.” (Italics ours.) 'There is no evidence in the record to show that any one except H. B. Allen had any interest in the stolen cotton. The allegation of ownership being essential, it must be proved as laid in the indictment. The variance between the allegation and proof is fatal. Horton v. State, 21 Ga. App. 120 (93 S. E. 1012), and cases cited; Eubanks v. State, 105 Ga. 612 (31 S. E. 741). In addition, the brief of evidence shows that “ the State introduced an indictment in Gordon superior court, February term, 1921, against Wilburn Woods and Lawson Fowler, with a verdict of guilty of simple larceny in the stealing of 700 or 800 pounds of seed-cotton from H. B. Allen in November, 1920.” (Italics, ours.)
Moreover, the evidence is not sufficient to show beyond a reasonable doubt that at the time of the reception of the goods by the plaintiff in error he knew that they had been stolen. Stripland v. State, 114 Ga. 843 (40 S. E. 993); Sanford v. State, 4 Ga. App. 449 (61 S. E. 741). See also Pat v. State, 116 Ga. 92 (2) (42 S. E. 389).
The court erred in overruling the motion for a new trial.
Judgment reversed.
