5 Ga. App. 840 | Ga. Ct. App. | 1909
The defendant was indicted for larceny from the person. The privacy of the taking is an essential element in this offense. The State failed to show this element, and a verdict of not guilty was returned, under the direction of the court. The State’s counsel thereupon prepared another accusation against the defendant, charging the same transaction as a simple larceny. The defendant pleaded in bar the former jeopardy. The court sustained a general demurrer to the plea.
It was held in Lavender v. State, 107 Ga. 707 (33 S. E. 420), that a defendant might be convicted of simple larceny under an indictment charging him with larceny from the person. The .State’s counsel, in his brief in this court, concedes that this principle, if adhered to, would ■ control the case in the defendant’s favor, and asks that it be certified to the Supreme Court for review. We decline this request. We think the Lavender case is ■correct in principle, and should not be overruled.
Judgment reversed.