Patterson v. State.*

• Decision Date: 25 March 1905
• Citation: 50 S.E. 489,122 Ga. 587
• Parties: PATTERSON. v. STATE.*
• Court: Georgia Supreme Court

122 Ga. 587

50 S.E. 489

PATTERSON.

v.STATE.^*

Supreme Court of Georgia.

March 25, 1905.

CRIMINAL LAW—TRIAL—RECALLING JURY—LARCENY— INSTRUCTIONS — INDICTMENT — EVIDENCE—REMARKS OF SOLICITOR—DISQUALIFICATION OF BAILIFF.

1. Of his own motion, and over the objection of either party, the judge may recall the jury from their room, and withdraw any instructions which have been improperly given, or give them needful instructions on any matter which through oversight was not included in the regular charge.

[Ed. Note.—For cases in point, see vol. 14, Cent. Dig. Criminal Law, 2065-2067; vol. 46, Cent. Dig. Trial, §§ 744, 745.]

2. It was not error to instruct the jury that, under an indictment for larceny from the house, the defendant might be convicted of simple larceny, where he was charged with "wrongfully, fraudulently, and privately taking the property from the house and carrying it away with intent to steal the same."

[Ed. Note.—For cases in point, see vol. 27, Cent. Dig. Indictment and Information. § 594.]

3. The property was sufficiently described. The fact of the stealing was sufficiently alleged; the indictment following, in substance, the language of Pen. Code 1895, § 155.

[Ed. Note.—For cases in point, see vol. 32, Cent. Dig. Larceny, § 67.]

4. Under an indictment for stealing "one double-case silver watch, " the variance was not fatal, where it appeared that the accused took from a jeweler's bench the case and the works, which had been separated for the purpose of repair.

5. The jury having found the defendant guilty of simple larceny, the question of larceny from the house was out of the case, and the assignment relating to rulings on that subject need not be considered.

[Ed. Note.—For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3166.]

6. There was nothing in the language of the judge, complained of. which amounted to coercing the jury into finding a verdict.

7. That ground of the motion which complains of the disqualification of the bailiff who was in charge of the jury fails to show that the defendant and his counsel were ignorant thereof, and by a note of the judge it is made affirmatively to appear that the jury was actually in charge of the deputy sheriff, and that the bailiff only served in his presence.

8. The argument of the solicitor general did not afford ground for the grant of a mistrial; nor should a mistrial have been granted because the court received the verdict a moment before one of the jurors came into court; it appearing that, as soon as he entered, the verdict was immediately properly published and received.

9. The evidence as to the ownership of the property and the possession of the house sustained the allegation in the indictment. The charge to the effect of the defendant's taking the property under a bona fide claim was correct, and sufficiently covered that branch of the case to make it unnecessary to give the written request on the same subject.

30. The demurrer was properly overruled. The evidence sustained the verdict, which met the approval of the trial judge. No error of law appears, and this court will not interfere with the refusal to grant a new trial.

(Syllabus by the Court.)

Error from City Court of Americus; C. R. Crisp, Judge.

M. J. Patterson was convicted of larceny, and brings error. Affirmed.

By a special presentment the grand jury of Sumter county charged M. J. Patterson with the offense of larceny from the house, "for that" he "did the house, to wit, the storehouse, of Zack Childers, in said county situate, enter, and, having entered, one double-case silver watch, of the personal goods of said Zack Childers, in said house, then and there being found, and of the value of thirty dollars, did wrongfully, fraudulently, and privately take therefrom and carry away, with intent to steal the same." The defendant demurred on the ground that the indictment charged no offense against the laws of Georgia, that it failed to allege that he "did steal" therefrom, and that the watch was not sufficiently described. From the evidence it appears that Zack Childers was in possession of a storehouse in which was a lot of jewelry and silverware, including the watch alleged to have been stolen. It further appears that Childers was selling the stock at auction, and that the defendant, Patterson, had bought a part of the goods. Patterson obtained permission to leave the goods he had bought in the store, and Childers gave him a key to one of the doors of the place, retaining another for his own use. Childers retained control over the other goods in the store which had not been disposed of, and was in possession of the watch alleged to have been stolen. It needed repair, and the works had been removed from the case. In this condition it was on a bench, and later was missed. Some time afterwards, and after something in the nature of a warning, the defendant admitted he knew where the watch was. He subsequently came into the store, and when Childers returned from another part of the building the watch was found in its original position, except that the works had been put in the case, and the back was screwed on. There was some question as to whether the property had been taken from the store, or concealed in a drawer under the counter. It was argued, therefore, that larceny from the house had not been shown. There was also evidence that the defendant stated that it was bankrupt stock, and nobody would lose anything by the transaction. In his statement to the jury be set up a claim to the property. The judge charged on the subject of larceny from the house, and that, if they found that the property had not been removed, they might consider the question as to whether the defendant was guilty of an attempt to commit larceny from the house. After the jury had been out for some time, they were called into open court, and upon Inquiry the foreman replied to the judge that there was a difference of opinion among them. They did not ask to be recharged, but, at the request of the solicitor general, and over the objections of the defendant, the judge did again charge the jury, and withdrew from them what he had said about finding a verdict for an attempt, and further charged them as to the law of simple larceny.

The jury retired, and soon thereafter returned with a verdict finding the defendant guilty of simple larceny. He made a motion for a new trial, in which he assigned as error the giving of the second charge, in which the court instructed the jury as to the law of simple larceny; insisting that it was confusing, in view of the previous instructions by the court, and that it was harmful to him. The motion also assigned as error that the evidence did not sustain the allegations as to the ownership of the house or the ownership of the personal property; that it failed to show the larceny of a double-case silver watch, but only the taking of works and a case; that the solicitor general was allowed to ask leading questions; and that certain witnesses, who were officers of the court, were not put under the rule requiring witnesses to be ex-amined out of the hearing of each other. It was also complained that the court should have declared a mistrial because of the argument of the solicitor general to the effect that the defendant's plea was a mere...