Glass v. State

• Decision Date: 25 January 1921
• Docket Number: (No. 11270.)
• Citation: 106 S.E. 13,26 Ga.App. 157
• Parties: GLASS. v. STATE.
• Court: Georgia Court of Appeals

26 Ga.App. 157

106 S.E. 13

GLASS.

v.STATE.

(No. 11270.)

(Court of Appeals of Georgia, Division No. 1.

Jan. 25, 1921.

(Syllabus by Editorial Staff.)

Luke, J., dissenting in part.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

R. W. Glass was convicted of having possession of a motor vehicle having motor number removed or altered, contrary to the provisions of Act Aug. 19, 1918, and he brings error. Affirmed.

Westmoreland & Smith, Jas. L. Anderson, and R. J. Jordan, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., and E. A. Stephens, both of Atlanta, for the State.

PER CURIAM. [1, 2] 1. It was not error to overrule the demurrer to the indictment. The indictment charged the crime In the language of the statute, and so plainly that the jury must have understood the nature of the offense charged. It was therefore not subject to demurrer. Penal Code (1910) § 954. The description of the automobile was sufficient. Adams v. State, 21 Ga. App. 152, 94 S. E. 82, and citations. This offense was a felony, and of the nature of a "compound larceny, " and in such a case the description of the stolen property need not be as particular as in cases of simple larceny. Cannon v. State, 125 Ga. 785, 54 S. E. 692.

2. The assignments of error in the motion for a new trial are not of such merit as to require a new trial. The evidence was conflicting and not altogether satisfactory, but we cannot say that there was no evidence authorizing the verdict, which has the approval of the trial judge. It was not error to overrule the motion for a new trial.

Judgment affirmed.

BROYLES, C. J., and BLOODWORTH, J., concur.

LUKE, J. (dissenting). In this case the indictment charged—

"R. W. Glass with the offense of felony, for that the said accused, in the county of Fulton and state of Georgia, on the 12th day of February, 1919, did knowingly buy, steal, receive, conceal, and have in his possession a Ford touring model automobile, of the value of $580.00, and the property of A. C. Porterfield, from which the motor number—the same being a mark of identification—had been removed and altered for the purpose of concealment and misrepresenting the identity of said automobile, contrary to the laws of said state, " etc.

The accused demurred specially, upon the ground that the indictment did not set out either the original number of the automobile or the number as altered or removed, and the judgment overruling the demurrer is here for review upon proper assignments of error. As pointed out in paragraph 1 of the decision, the majority of the court agree with the ruling of the trial court upon the demurrer. To this judgment and opinion of the majority of the court this writer does not agree.

The indictment is based on an act ap-proved August 19, 1918 (Ga. Laws 1918, p. 264). The act provides in part as follows:

"It shall be unlawful to buy, steal, sell, receive, or dispose of, conceal, or have in possession, any automobile, motor-vehicle, bicycle, motorcycle, or any other machine propelled by gasoline or electricity in this state, from which the manufacturer's serial number or any other distinguishing number or identification mark has been removed, defaced, covered, altered, or destroyed for the purpose of concealment or misrepresenting the identity of said motor vehicle, automobile, bicycle, motorcycle or other such machine."

A violation thereof is punishable by confinement in the penitentiary. The indictment in this case states the offense in practically the terms and language of the statute, and such a statement of the offense is usually deemed, under section 954 of the Penal Code, sufficiently technical and correct. But where the indictment charges simple larceny, or a substantially similar offense, it must, in addition to using the language of the statute, describe the subject-matter of the offense with sufficient certainty to individualize the transaction, reasonably inform the defendant of the instance meant, enable the jury to say whether the indictment and the evidence relate to the same chattel, and, in the event of a subsequent prosecution for the same offense, put the court in position to determine the identity of the subject-matter of the two indictments. See, in this connection, Walthour v. State, 114 Ga. 75, 39 S. E. 872; Brown v. State, 116 Ga. 559, 42 S. E. 795; Melvin v. State, 120 Ga. 490, 48 S. E. 198; Bright v. State, 10 Ga. App. 17, 72 S. E. 519.

In the case that we have here for review, the motor number, rather than the automobile itself, is the subject-matter of the offense; but in my opinion the indictment contains insufficient description of either. The...