Kyler v. State, 36277

• Court: United States Court of Appeals (Georgia)
• Citation: 94 S.E.2d 429,94 Ga.App. 321
• Docket Number: No. 36277,No. 2,36277,2
• Parties: Willie Mae KYLER v. The STATE
• Decision Date: 05 September 1956

Page 429

94 S.E.2d 429

94 Ga.App. 321

Willie Mae KYLER v. The STATE.

No. 36277.

Court of Appeals of Georgia, Division No. 2.

Sept. 5, 1956.

Syllabus by the Court.

1. 'Simple theft or larceny is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same.' Code, § 26-2602. An indictment charging the taking and carrying away, with intent to steal, of $800 belonging to another person, states the offense of simple larceny and is good as against general demurrer.

2. 'In an indictment for simple larceny it is not necessary to state the location of the property or place from which it was taken and carried away, further than to state that it was in the county in which the court had jurisdiction, unless a statement of the location is a descriptive averment essential to the identification of the property alleged to have been stolen.' Gibson v. State, 13 Ga.App. 67, 78 S.E. 829, and see Peek v. State, 55 Ga.App. 161, 189 S.E. 372.

3. Every defendant in a criminal case is entitled to be tried under an accusation or indictment perfect in form and substance; and, where, under an indictment charging him with the larceny of $800 in money from the yard of a named person, the defendant demands to know whether the money is in currency or in coin, he is entitled to such information in order to prepare his defense properly. If the money be in coin, the charge is one for a misdemeanor, if in currency, one for a felony, and whether he is charged with a felony or a misdemeanor will affect the conduct of his trial, especially with respect to the composition of the jury panels and the number of challenges allowed, and perhaps in other respects.

In an indictment returned by the grand jury of Laurens County, the defendant, Willie Mae Kyler, was charged with 'larceny of money' in that county for that on April 20, 1956, she 'did unlawfully, fraudulently, feloniously, with intent to steal, did with a garden rake, secretly dig up a certain fruit jar from the back yard of the dwelling house and a place of business, the aforesaid fruit jar containing $800, within the curtilage of the aforesaid dwelling house, the aforesaid fruit jar having been placed in a small pit for the purpose of security from fire and theft, said fruit jar and the aforesaid $800, having been placed in the aforesaid pit for the purposes as stated aforesaid and being a part of a small place of business and the aforesaid dwelling house, said place of business being a small eating and other mercantile shop, the same being all individual property and money located, on premises jointly owned by Marshall Coney, and Katie Coney, an individual savings received from Katie Coney's work and labor which she received for baby sitting, and wages at the Georgia Plywood Mill, at Dublin, Georgia, all of the same being in her possession and control on said property with the consent of her said husband, Marshall Coney, and after digging did then and there take and carry away the same with the aforesaid felonious and fraudulent intent to steal the same, and being of the value of $800 of the property of Katie Coney, and in her possession and control, individually as aforesaid, and knowingly and fraudulently taken with the aforesaid intent to steal.'

To this indictment the defendant demurred upon the following grounds: '(1) No criminal offense is set out therein. (2) The description of the money alleged to have been taken is not sufficiently described. It is alleged that $800 was taken and whether this was in silver or currency is not stated nor whether it was issued by the United States Government or some other government and defendant is entitled to have a more accurate information on this point to prepare and make her defense. (3) The location of the premises from which this money is alleged to have been feloniously taken is not identified sufficiently to inform the defendant sufficiently of the charge against her. The indictment undertakes to specify the place from which certain money was taken and carried away and undertakes to make the location a descriptive term as to where the fruit jar was buried without informing where the premises of Marshall and Katie Coney are located in particularity and the fruit jar is not otherwise described and has no further identification than a certain fruit jar. (4) There is no crime known to the laws of Georgia of larceny from the curtilage.'

The trial court overruled these demurrers and the defendant assigns error here upon that judgment.

C. C. Crockett, Aretha M. Smith, Dublin, for plaintiff in error.

W. W. Larsen, Sol. Gen., W. W. Larsen, Jr., Dublin, for defendant in error.

CARLISLE, Judge.

1, 2. Headnotes 1 and 2 are self-explanatory and require no elaboration.

3. While after verdict the defendant in a criminal case will not be heard to complain of technical defects as to the form of the indictment under which he was tried, Bell v. State, 41 Ga. 589; Davis v. State, 116 Ga. 87, 42 S.E. 382; Lewis v. State, 55 Ga.App. 743, 191 S.E. 278, every defendant in a criminal case is entitled to be tried under an indictment perfect in form and substance. Harris v. State, 58 Ga. 332(2), 334; Lanier v. State, 5 Ga.App. 472, 63 S.E. 536. Many cases following the rule set forth in Code, § 27-701, dealing with the sufficiency of accusations and indictments, have held that an accusation or indictment substantially in the language of the Code is sufficient to withstand demurrer, but that rule has its limitations, is not of universal application, and does not cover all crimes. In Youmans v. State, 7 Ga.App. 101, 113, 66 S.E. 383, 389, this court had the following to say: 'In construing [Code, § 27-701], in the case of Amorous v. State, 1 Ga.App. 313, 57 S.E. 1000, we said; 'It means that an indictment conforming substantially to its requirements shall be sufficient, but it is not designed to deny the one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial.' It is true * * * that 'there are many offenses that can be stated in the language of the Code, such as playing cards, selling liquor, or carrying a pistol concealed. There are many other offenses that would not be sufficiently charged if stated merely in the language of the Code, such as murder, larceny, perjury, etc. A description of these latter offenses or a description of what the defendant did is necessary to make a legal charge, and to enable the defendant to prepare a defense.' A distinction is to drawn between charges which are violations of purely statutory offenses and those cases which were penalized under the common law. Naturally, where the offense is statutory, the language of the accusation must follow more closely the language of the statute and be restricted by it more, than where the charge relates to a common law offense, in which the details must necessarily be amplified in order to cover the definition of the common-law offense [which has been codified as such into our law]. Reference is made to this difference in United States v. Simmons, 96 U.S. 360, 24 L.Ed. 819, in which the court said: 'Where the offense is purely statutory, having no relation to the common law, it is as a general rule sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 'But to this general rule there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense.' 'An indictment not so framed is defective, although it may follow the language of the statute.''

In Walthour v. State, 114 Ga. 75, 39 S.E. 872, it is stated: 'When the subject-matter of a larceny is horses, cows, or hogs, the Penal Code prescribes certain elements of description, but in the case of other personal chattels the rule of the common law prevails. Mr. Wharton, in his work on Criminal Pleading and Practice, states the rule thus: 'When, as in larceny, * * * personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated.' Section 206. In the case of Davis v. State, 40 Ga. 229, Warner, J., quotes this principle from Archb. Cr. Pl., in almost the identical words, and states that the principle of the common law [with reference to simple larceny] is still of force in this state. See, in this connection, Rap. Larceny, § 75; 2 Bish. Cr. Proc., § 699. Mr. Bishop, in his work just cited, states the object of the description to be 'to individualize the transaction, and enable the court to see that they are, in law, the subjects of larceny. * * * 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.' See Sanders v. State, 86 Ga. 724, 12 S.E. 1058, where this author's rule is quoted with approval. Mr. Wharton, in his work above quoted (section 208), further says: 'There must be such certainty as will enable the jury to say whether the chattel proved...