Barbour v. State
| Decision Date | 29 November 1941 |
| Docket Number | No. 29092.,29092. |
| Citation | 18 S.E.2d 40 |
| Parties | BARBOUR . v. STATE. |
| Court | Georgia Court of Appeals |
Rehearing Denied Dec. 16, 1941.
Syllabus by the Court.
The verdict was amply authorized by the evidence and the special assignments of error show no cause for a reversal of the judgment
Error from Superior Court, Peach County; A. M. Anderson, Judge.
W. B. Barbour was convicted for selling cotton without consent of landlord and before payment of agreed rent to landlord and with intent to defraud landlord, and he brings error.
Affirmed.
S. M. Mathews and A. Melrose Lamar, both of Fort Valley, for plaintiff in error.
Chas. H. Garrett, Sol. Gen., of Macon, for defendant in error.
The accused was tried on an indictment which alleged that he had sold thirty bales of "upland short staple cotton, " which he had grown in 1938 on certain described lands which he had rented from Atlanta Joint Stock Land Bank, without the consent of said landlord, and before payment of the agreed rent to the landlord, and with the in tent to defraud the landlord, the landlord having a lien for rent on said cotton, and that said sale caused loss to the landlord in the sum of $1,117.43. The first trial resulted in a mistrial, the jury failing to agree on a verdict. On the trial now under review the jury returned a verdict of guilty, the motion for new trial was overruled and that judgment is assigned as error. The writ of error also contains exceptions to certain interlocutory rulings of the court, which exceptions were preserved by exceptions pendente lite.
The defendant contends, among other things, that the State failed to prove that the cotton referred to in the indictment was grown on the described rented lands, that it also failed to prove that the cotton sold was "upland short staple" as alleged in the indictment, and that it failed to prove that the landlord had a lien on said cotton, or that the cotton was sold without the consent of the landlord. A reading of the voluminous brief of evidence convinces us that the evidence, direct and circumstantial, while conflicting in some respects, authorized the jury to find that the cotton was grown on the lands described in the indictment, that the landlord had a lien for rent on the cotton, and that it was sold by the defendant without consent, express or implied, of the landlord, with the intent to defraud the landlord and that the sale caused a loss to the landlord. Moreover, the defendant, in his statement to the jury, virtually admitted that the cotton sold by him was grown on said rented premises. He did not deny that it was so grown, but stated merely that it was sold with the consent of the landlord. In that statement he based his defense solely on the ground that the landlord acquiesced in the sale. We think the jury were authorized to find that his statement amounted to an implied admission that the cotton sold by him was grown on the land described in the indictment. It is well settled that the statement of a defendant to a jury is a statement made in judicio and is binding on him. Where the defendant makes an admission of a fact in his statement, such admission is direct evidence, and the State need not prove such fact by any other evidence. Dumas v. State, 62 Ga. 58(3); McCoy v. State, 124 Ga. 218(3), 52 S.E. 434; Vinson v. State, 45 Ga.App. 219, 164 S.E. 208.
It is true that the State offered no evidence to support the allegation of the indictment that the cotton sold by the defend-int was "upland short-staple cotton." Of course it was unnecessary to so describe in the indictment the cotton sold. All that was necessary was to charge that the accused sold thirty bales of cotton grown on the rented land, the sale being without the landlord's consent, and before paying the agreed rent for the premises, and with the intent to defraud the landlord, and thereby causing a loss to the landlord. In an indictment for such an offense it is sufficient to describe the crops sold in the most general terms, and a more particular description is mere surplusage and need not be proved. See, in this connection, Holt v. State, 5 Ga.App. 184, 62 S.E. 992. This class of cases is distinguished from larcenies and like cases where it is necessary to specifically describe the property alleged to have been stolen, so that the defendant will be able to prepare his defense and to prevent him from being again tried for the same crime. Here, it was unnecessary to identify any particular kind of cotton. The cotton in question was grown by the defendant, he knew what variety of cotton it was, and a failure to charge the variety could not have prevented him from preparing his defense. Nor could the failure to so charge subject him to another trial for the same offense. The indictment described the rented land, the rental contract, the year in which the cotton was grown and sold, and it is unthinkable that the accused could be prosecuted in another case for unlawfully selling cotton grown on that land and in that year. And even in a larceny case it has been held that "In criminal law an unnecessarily minute description of a necessary fact must be proved as charged, but an unnecessary description of an unnecessary fact need not be proved." Hall v. State, 120 Ga. 142(1), 47 S.E. 519. See, also, Jackson v. State, 159 Ga. 133(1), 124 S.E. 874; Berrien v. State, 156 Ga. 380(6), 119 S.E. 300, and cit.; Moore v. State, 25 Ga.App. 251(2), 102 S.E. 916; Howell v. State, 29 Ga.App. 174(2), 114 S.E. 717; Mixon v. State, 34 Ga. App. 782(4), 131 S.E. 367. We hold that the particular description in the indictment of the cotton was mere surplusage and did not have to be proved by the evidence. A careful study of the brief of evidence satisfies us that the verdict was authorized by the evidence.
[7, 8] Two special assignments of error complain of the refusal of the court to grant two motions for a mistrial. The first motion was based upon the ruling of the judge allowing the solicitor-general "to propound to the jury, impaneled and put upon movant, questions in addition to the voir dire questions prescribed by law in criminal cases." The additional questions are set forth in the ground of the motion for new trial complaining of said ruling. The second motion for a mistrial was based upon certain alleged improper and prejudicial remarks made by the judge "before certain members of the jury." The remarks are set forth in the ground of the motion complaining of the remarks. Conceding, but not deciding, that the judge erred in his ruling in the first instance, and that in the second instance his remarks were improper and prejudicial, a motion for mistrial was not the proper procedure in either instance. The time is not ripe for such a motion until the trial of the case has begun, and the trial does not begin until the jury has been impaneled and sworn. Before that has been done the defendant in a criminal case is not in jeopardy. The indictment may even be dismissed by the solicitor-general without the consent of the defendant after his plea has been entered and before the jury has been impaneled and sworn. Newsom v. State, 2 Ga. 60; Reynolds v. State, 3 Ga. 53(2); Nolan v. State, 55 Ga. 521(1), 21 Am.Rep. 281; Doyal v. State, 70 Ga. 134(3), 145; Franklin v. State, 85 Ga. 570, 571, 11 S. E. 876. In the instant case the record shows that the motions for a mistrial were made before the jury had been impaneled and sworn. Therefore the judge did not err in overruling the motions.
Special ground 4 sets forth the following complaint: " The testimony was obiected to on the ground that ...
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