Ayers v. State

• Decision Date: 20 December 1907
• Docket Number: (No. 811.)
• Citation: 3 Ga.App. 305,59 S.E. 924
• Parties: AYERS. v. STATE.
• Court: Georgia Court of Appeals

59 S.E. 924

3 Ga.App. 305

AYERS.

v.STATE.

(No. 811.)

Court of Appeals of Georgia.

Dec. 20, 1907.

1. Larceny — Indictment — Description of Property.

In indictments for larceny, "the description [of the stolen property] should be simply such, as in connection with the other allegations, will affirmatively show the defendant to be guilty, will reasonably inform him of the instance meant, and put him in a position to make the needful preparations to meet the charge."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 32, Larceny, § 64.]

2. Criminal Law — Appeal — Harmless Error.

Where, by an erroneous conception of court and counsel, a misdemeanor case is tried as if it were a felony, but the error is discovered before sentence, so that no harm in this respect results to the defendant, the error is prima facie harmless to the defendant.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3085.]

3. Execution—Levy.

As to personal property the seizure, and not the official entry, constitutes the levy.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 21, Execution, §§ 290-293.]

4. Larceny—Evidence of Value.

In trials for simple larceny, it must appear that the stolen property is of some value, either generally or specially to the prosecutor. Direct proof of value, however, is not indispensable. It may be shown inferentially.

[Ed. Note. For cases in point, see Cent. Dig. vol. 32, Larceny, § 18.]

5. Same.

A person may steal his own property from an officer who has seized it under levy, and thereby be guilty of larceny.

(Syllabus by the Court.)

Error from Superior Court, Haralson County; Price Edwards, Judge.

D. J. Ayers was convicted of larceny, and brings error. Affirmed.

The indictment charged the defendant with the simple larceny of "one Eclipse Frick engine, 25 horse power, 1 Frick box boiler, 3 log carts, 1 set lumber trucks, and track irons, all of the value of $500. and of the personal goods of one I. B. Witcher, " a constable; the indictment reciting that the property had been levied on by the constable under a described attachment. The property belonged to the defendant, but the constable had seized it under an attachment. The defendant, after lulling the constable into a sense of security by promising to replevy the property, had it moved across the state line into Alabama. The further facts necessary to an understanding of the errors complained of appear in the opinion.

W. G. Brock, Jones & Hutchens, and Griffith & Matthews, for plaintiff in error.

W. K. Fielder, Sol. Gen., and Lloyd Thomas, for the State.

POWELL, J. 1. The defendant demurred to the indictment on the ground that the property alleged to have been stolen is not sufficiently described. "The description should be simply such as, In connection with the other allegations will affirmatively show the defendant to be guilty, will reasonably inform him of the instance meant, and put him in a position to make the needful preparations to meet the charge." 2 Bishop, Orim. Proc. § 699, cited in Walthour v. State, 114 Ga. 76, 39 S. E. 872. See, also, Bone v. State, 120 Ga. 866, 48 S. E. 356; Sanders v. State, 86 Ga. 717, 12 S. E. 1058; Powell v. State, 88 Ga. 32, 13 S. E. 829. The general description aided by the more definite allegation that it was the property seized under a certain levy sufficiently individualized the transaction. See Bank of Sparta v. Butts, 1 Ga. App. 771 3), 57 S. E. 1061; Phelan v. Vestner, 125 Ga. 826, 54 S. E. 697. By this additional identification of the subject-matter of the larceny, the case at bar is differentiated from the cases of Walthour v. State, 114 Ga. 76, 39 S. E. 872, Leonard v. State, 116 Ga. 559, 42 S. E. 795, and Melvin v. State, 120 Ga. 490, 48 S. E. 198.

2. The offense with which the defendant stood charged was a misdemeanor. The court charged the jury: "This case is being tried as a felony, and, if you should find the defendant guilty, you have the right to recommend—add to your verdict finding him guilty recommendation punishing him for a misdemeanor." The jury recommended that the defendant be punished as for a misdemeanor. We presume the court inflicted a legal sentence, as no insistence to the contrary is made. In certifying this ground of the motion for a new trial the judge in an explanatory note says: "For some reason, the court and counsel for both the state and the accused tried the case under the impression that, the property being of greater value than $50, the charge amounted to a felony, and the case was so tried up to the time of the delivery of the charge." The error in trying the case with the strict formality of a felony trial rather than with the ordinary misdemeanor procedure seemsto have been a disadvantage to the state rather than to the accused. While error, it was, as against the defendant (no special Injury being shown), harmless error.

3. When the attachment under which the levy was made was offered in evidence, objection was made on the ground that the levy, as appearing from the entry on the attachment, is void for lack of definite description. The seizure, not the entry, constituted the levy. There was sufficient evidence of an actual levy. Corniff v. Cook, 95 Ga. 61 (2), 22 S. E. 47, 51 Am. St. Rep. 55.

4. Exception is taken to the following instruction by the court to the jury: "If you believe in this case that the defendant, in this county, on the day named In the bill of indictment or within two years before the finding of the bill of indictment, wrongfully and fraudulently took and carried away these goods, this property or any other portion of the property, and that the property so taken, whether the whole of it or part of it, had a value, and that it was the property of Witcher in the sense in which it is alleged here to have been his property, and such taking was done with intent to steal the same, under the rules I have given you in charge, it would be your duty to convict the defendant." The substance of the objection made is that neither in the indictment nor in the proof was any value shown as to any segregate portion of the property; and therefore, though it were shown that the defendant stole a portion of it, there was no proof of the value of the part taken. For example, if he took the engine, but not the log carts, there was no proof of the value of the engines; the only testimony as to value being that the whole outfit was worth $500. In prosecutions for larceny, it must be shown that the chattel stolen is a thing of value. Benjamin v. State, 105 Ga. 830, 31 S. E. 739; May v. State, 111 Ga. 840, 36 S. E. 222; Wright v. State, 1 Ga. App. 158 3), 57 S. E. 1050. If the grade of the crime is dependent on the value of the article taken, the proof must show whether it is worth more or less than the diacritical amount fixed by the statute. Powell v. State, 88 Ga. 32, 13 S. E. 829. In other eases proof merely that the stolen article is a thing of value Is sufficient. No particular value need be shown. Davis v. State, 40 Ga. 231; Bane v. State, 113 Ga. 1040, 39 S. E. 463; Hawkins v. State, 95 Ga. 458, 20 S. E. 217; Smith v. State, ...