Mance v. State

• Decision Date: 23 November 1908
• Docket Number: (Nos. 1,431, 1,432.)
• Court: Georgia Court of Appeals
• Parties: MANCE. v. STATE.

62 S.E. 1053

5 Ga.App. 229

MANCE.

v.STATE.

(Nos. 1, 431, 1, 432.)

Court of Appeals of Georgia.

Nov. 23, 1908.

1. Criminal Law (§ 295^*)—Former Jeopardy—Burden op Proof.

The burden of proof under a special plea of former jeopardy is upon the defendant. In the case at bar the defendant did not successfully carry the burden.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 674; Dec. Dig. § 295.*]

2. Criminal Law (§ 297*)—Former Jeopardy—Verdict Against Plea—Evidence.

Where a defendant is tried and acquitted of an offense, and thereafter within a period of time less than that prescribed by the statute of limitations is again accused of a crime of the same general denomination, and files upon the second trial a special plea that the previous prosecution was for the same transaction and offense as that for which he is about to be tried, and the state takes issue on the plea and a verdict is rendered against the plea, the state is estopped, on the trial of the case in chief, from relying for a conviction upon any transaction which might legally have been investigated and adjudicated under the former prosecution, and the court should so instruct the jury.

[Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 297.*]

3. Larceny (§ 5*)—Property Subject.

Intoxicating liquor may be the subject-matter of larceny, though it is not the subject-matter of lawful sale.

[Ed. Note.—For other cases, see Larceny, Cent. Dig. § 11; Dec. Dig. § 5.*]

4. Larceny (§ 77*)—Possession of Stolen Goods—Instructions.

An instruction upon the presumption that the jury is authorized to draw from possession of stolen property is erroneous if it omits all reference to the recency of the possession.

[Ed. Note.—For other cases, see Larceny, Cent. Dig. §§ 199, 202-204; Dec. Dig. § 77.*]

(Syllabus by the Court.)

Error from City Court of Richmond County; Wm. F. Eve, Judge.

John Mance was convicted of larceny from the house, and brings error. Affirmed as to one case, and reversed as to another.

F. W. Capers and F. L. McElmurray, for plaintiff in error.

J. C. C. Black, Sol., and John M. Graham, for the State.

POWELL, J. At the April term, 1908, of the superior court of Richmond county, the defendant was indicted for burglary, with a count charging larceny from the house, in which the stealing of certain enumerated brands of liquors was charged. He was tried at the same term and was acquitted. This burglary and the larceny were alleged to have been committed at a bailiff's room in the county courthouse at Augusta. Subsequently the defendant was found in possession of certain liquors and the state preferred an accusation against him in the city court of Richmond county charging him with larceny from the house. He filed a special plea of former jeopardy and acquittal. It appeared in the proof taken on the trial of this plea that, prior to the trial of the burglary case, there had been a number of distinct entrances into and larcenies from the room in the courthouse in which the liquors (which had been seized in a raid on a "blind tiger") were being kept. The defendant was not able to make it appear on the trial of his special plea that any of the liquors named in the accusation were the same as those designated in the burglary indictment, or that they were stolen along with or at the same time as any of those liquors which were the subject-matter of the former prosecution. The burden of proving this special plea was upon the defendant, and he was not able to establish the identity of the larceny with which he was accused in the city court with any offense that might have been tried under the former indictment, and the jury were therefore authorized to find against him.

2. The position assumed by the state's counsel as to the special plea and the verdict under it thereafter operated to estop the state from relying for a conviction upon any larceny which might have been the subject-matter of conviction in the burglary case. It was not thereafter, as in ordinary cases, permissible to convict by showing that the defendant at any time within two years of the filing of the accusation had stolen the articles named or any of them. It was incumbent upon the state to prove a larceny which was not, and could not have been, the subject-matter of investigation and judgment in the former case; for the...