Martin v. State

• Decision Date: 19 March 1912
• Docket Number: (No. 3,948.)
• Citation: 74 S.E. 304,10 Ga.App. 795
• Parties: MARTIN. v. STATE.
• Court: Georgia Court of Appeals

74 S.E. 304

(10 Ga.App. 795)

MARTIN.

v.STATE.

(No. 3, 948.)

Court of Appeals of Georgia.

March 19, 1912.

(Syllabus by the Court.)

1. Indictment and Information (8 137*)— Motions—Striking Out Questions.

Where there are good and bad counts in an indictment, the court may strike the bad counts, without quashing the whole indictment.

[Ed. Note.—For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.*]

2. Criminal Law (§ 370*)—Evidence—Other Offenses.

Where one on trial for larceny is shown to have recently been in possession of the property described in the indictment, and that the same had been stolen, it is permissible for the state to prove that, at the place where and the time when the stolen goods were found, there were also found numerous other articles of the same kind which had likewise been stolen. (Russell, J., dissenting.)

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 825-829; Dec. Dig. § 370.*]

3. Requests to Charge — Sufficiency of Evidence—No Error.

The requests to charge, so far as legal and pertinent, were fully covered by the general charge, which fairly presented the issues involved. The evidence fully supports the verdict, and there is no error in the record.

Error from City Court of Floyd County; J. H. Reece, Judge.

Will Martin was convicted of larceny, and brings error. Affirmed.

See, also, 74 S. E. 306.

Eubanks & Mebane and F. W. Copeland, for plaintiff in error.

John W. Bale, Sol. Gen., Moses Wright, and A. W. Shanklin, for the State.

POTTLE, J. The accused was arraigned under an indictment containing two counts; one charging the larceny of certain described buggy and wagon harness, and the other alleging that he had received the harness, knowing it to have been stolen. The accused demurred, upon the ground that the indictment charged two separate and distinct offenses, and failed to allege either that the accused had received the property in the county in which the indictment was found or that he had carried the harness into that county after receiving it elsewhere. The court sustained the demurrer to the count for receiving stolen property, and ruled the accused to trial on the count charging the larceny. After conviction he filed a motion for a new trial, which was overruled, and he excepted, assigning error upon this judgment, and upon the court's refusal to quash the whole indictment.

1. The point is made that a defective count renders the whole indictment bad, and that the demurrer should have been sustained generally. The joinder of the two counts was not cause for quashing the indictment. Johnson v. State, 61 Ga. 213. In the English case of Rex v. Pewterus, 2 Stra. 1026, an indictment charged one assault in 21 counts, and Lord Hardwicke declined to quash a part of them without quashing the whole indictment. Mr. Bishop, in his New Criminal Procedure (volume 1, § 764), points out that many of the English cases, giving too wide a scope to this decision, hold that the court cannot quash a defective count and leave a good one to stand, but the whole must be quashed or none, but that the later English doctrine permits the striking out of any number of counts less than all. In this country the decisions are in conflict. See cases cited by Bishop. In Sutton v. State, 122 Ga. 158, 50 S. E. 60, it was held that when an indictment contains two counts, one bad and the other good, a general demurrer to the whole indictment will not be sustained. It is familiar practice in this state for the court to require the prosecuting attorney to elect upon which count he will proceed. Often the accused has the right to compel an election, the practical effect of which is the en tering of a nolle prosequi as to all the counts save the one relied upon for a conviction. Each count contains a separate and distinct charge. It is an indictment within an indictment, and we know of no reason why, where there are two counts, one good and one bad, the bad count cannot be quashed and the good one left.

2. The indictment charged the larceny of certain harness, the property of one Davis. The accused was found in possession of some 22 sets of harness, including those described in the indictment. The state showed the larceny of the harness belonging to Davis, and relied for a conviction upon the inference of guilt arising from recent possession by the accused of the stolen property. Complaint is made that the court allowed proof of the theft of several sets of the harness which were found in possession of the accused along with the Davis harness. The point made is that the...