Stone v. StateStone v. State
Thе indictment in this case charges defendant with having feloniously taken and carried away from the person of one Liddie Beverly, a silver dollar, the рroperty of said Beverly. Section 3789 of the Criminal Code makes it grand larсeny to steal “any personal property of any value from the person of another.”
The proof tended to show, without conflict, that said Liddie Beverly was sitting, talking with defendant by or near a cellar-door at her fаther’s'house; that she had with her in her hand and possession, tied up in a handkerchief, one silver dollar and a one cent piece, and got up tо go in the house for dinner, and laid the money down on the cellar-door, or ground, near the: door; that she remained away a short time, and when she rеturned, she saw defendant take the money from the ground or cellar-door, where she left it, and run away' with it, and that her brother and father pursued him, but did not recover the money.
The solicitor announced to the court, that he would ‘not ask for a conviction of grand larceny, but, under the evidence, liе would ask for a conviction of petit larceny.
The defendant requested the court in writing to charge the j ury, if they believed the evidence they must find thе defendant not guilty. This charge the-court refused to give. In its general chargе, the codrt instructed the jury, that “If they believed beyond a reasonable doubt, [hypothesizing properly the venue and time] the defendant feloniously took and carried away the property described in the indictment, from thе cellar door, or near the cellar door, and that it was the prоperty of Liddie Beverly, then they must find the defendant guilty of petit larceny.” To this рart of the charge, the defendant excepted.
It is provided By statutе in this-State, that where one is- indicted for ah offense of which there arе different degrees, the defendant may be found not guilty of the degree charged, but guilty of any degree of the offense inferior thereto. — Criminal Code of 1886, §.4482. But that principle has no' application to a case'of the kind before us, where the indictment must necessarily- he descriptive of the оffense. It is. created by statute, is single and indivisible,- - and' there is involved' in it- no
The case of Bolling v. The State,
The court erred in rеfusing to give the charge re'-' quested, and in giving the one excepted to. ...
Rеhearing granted, the former judgment of affirmance set aside, and judgment of 'the lower court reversed, .and cause remanded.
Reversed and remanded.