Berrien v. State

• Citation: 9 S.E. 609,83 Ga. 381
• Parties: BERRIEN v. STATE.
• Decision Date: 24 April 1889
• Court: Georgia Supreme Court

9 S.E. 609

83 Ga. 381

BERRIEN v. STATE.

Supreme Court of Georgia

April 24, 1889

Error from superior court, Burke county; RONEY, Judge.

R. O. Lovett and T. D. Oliver, for plaintiff in error.

Boykin Wright, Sol. Gen., for the State.

SIMMONS, J.

Berrien was tried and convicted in the county court of Burke county on the charge of obtaining credit by false representations of his wealth and respectability, in that he mortgaged a dark bay mare mule to the prosecutor, representing to the prosecutor that the mule was his, (the defendant's,) when in truth and in fact the mule did not belong to him. The defendant sued out a certiorari to the superior court, alleging, among other grounds of error, that the verdict in the county court was contrary to law and the evidence, because the evidence introduced by the state did not show that he had mortgaged to the prosecutor a dark bay mare mule. The judge of the superior court refused to sustain the certiorari, but affirmed the judgment. We think the court ought to have granted a new trial on this ground. The only evidence introduced on this subject by the state was the mortgage given by the defendant to the prosecutor. That mortgage described the mule as a "mouse-colored mule, named Mag, fourteen years old." It is clear that this proof did not correspond with the description of the mule set out in the indictment. The indictment charges that he mortgaged a "dark bay mare mule," and the proof shows that it was "a mouse-colored mare mule, named Mag." A conviction for mortgaging a dark bay mare mule would not protect the defendant in a future indictment for having mortgaged a mouse-colored mare mule, named Mag. We think that the case of Barclay v. State, 55 Ga. 179, rules this case, and the judgment is reversed.