Pharr v. State

• Citation: 161 S.E. 643,44 Ga.App. 363
• Decision Date: 15 December 1931
• Docket Number: 21817.
• Parties: PHARR v. STATE.
• Court: United States Court of Appeals (Georgia)

161 S.E. 643

44 Ga.App. 363

PHARR v. STATE.

No. 21817.

Court of Appeals of Georgia, First Division

December 15, 1931

Syllabus by the Court.

Description of articles in indictment for larceny as black leather, black fiber and tan fiber sample cases, 80 pounds assorted candies and one book photographs of candy, held insufficient as against special demurrer (Pen. Code 1910, § 954).

In an indictment for simple larceny, the following description of the articles alleged to have been stolen is insufficient when attacked by special demurrer invoking a more detailed description of each article: "One black leather sample-case, one black fiber sample-case, one tan fibre sample-case of the value of $15, eighty pounds of assorted candies of the value of $25, one book photographs of candy of the value of $25, all the property of P. B. Smith."

Error from Superior Court, Fulton County; G. H. Howard, Judge.

S. R Pharr was convicted of larceny, and he brings error.

Reversed.

F. Joe Turner, Jr., of Atlanta, for plaintiff in error.

John A Boykin, Sol. Gen., and J. W. LeCraw, both of Atlanta, for the State.

LUKE J.

The indictment on which S. R. Pharr was convicted charges that C. A. Voyles, alias C. P. Voyles, and S. R. Pharr, alias Jack Pharr, did "steal *** one black leather sample case, one black fibre sample case, one tan fibre sample case, of the value of $15, eighty pounds of assorted candies of the value of $25, one book photographs of candy of the value of $25, all the property of P. B. Smith." Pharr excepts to the overruling of his demurrer to the indictment, and of his motion for a new trial.

The demurrer is as follows: "1. The allegations in said indictment are too vague, indefinite and uncertain to place this defendant on notice of what he is called upon to defend. 2. Said indictment contains an insufficient description of said alleged offense, or of the articles alleged to have been stolen. 3. Said indictment fails to sufficiently locate said alleged offense, or to inform this defendant what he is called upon to defend. 4. The allegation of 'one black leather sample case' is too general and indefinite, it not being alleged whether said sample case was large enough or made for carrying samples of clothes, cotton, automobile accessories; of samples of perfumes, jewelry, or what, no dimensions or measurements being given. 5. The description of 'one black fibre sample case' is too general, vague and uncertain, no dimensions or measurements being given, and it not being alleged what kind or character of samples were carried or to be carried in said alleged case. 6. The description, 'one tan fibre sample case of the value of $15,' is too general, vague, and indefinite, it not being alleged whether the case itself was a sample, miniature or large, or whether it was a case for carrying samples in, and what kind of samples. 7. The description, 'eighty pounds of assorted candies,' is too general, vague, and uncertain, it not being alleged whether the assortment consisted of large or small stick candies, gum drops, peanut candies, cocanut candies, chocolate, or what kind of candy, or whether the candy was medicated, such as cough drops, etc. 8. The description, 'book photographs of candy of the value of $25,' is too general, indefinite, and uncertain, it not being alleged what kind of candy was photographed, and no description of the alleged book being given." Briefly stated, the substance of the entire demurrer is that the articles alleged to have been stolen are not described with sufficient definiteness; indeed, this is the only contention argued and insisted upon by counsel for plaintiff in error.

In the Penal Code 1910, § 954, the test of the substance of an indictment is stated in the following language: "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may be easily understood by the jury." However, as stated in Brown v State, 116 Ga. 559, 562, 42 S.E. 795, 796, "this section was not intended to dispense with the substance of good pleading, nor to deny to one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial, nor to deprive him of the right to have an indictment perfect as to the essential elements of the crime charged." See, also, Johnson v. State, 90 Ga. 441, 444, 16 S.E. 92; O'Brien v. State, 109 Ga. 51, 52, 35 S.E. 112. The following rule, adopted from 2 Bishop, Crim. Proc., § 699, has the approval of both the appellate courts of this state: "In an indictment for larceny, the description of the stolen property should be simply such as,in connection with the other allegations, will affirmatively show the accused to be guilty, will reasonably inform him of the transaction charged, and will put him in a position to make the needful preparations for his defense." Carson v. State, 22 Ga.App. 551 (1), 96 S.E. 500. See, also, Walthour v. State, 114 Ga. 75, 39 S.E. 872; Brown v. State, 116 Ga. 559 (2), 42 S.E. 795; Sanders v. State, 86 Ga. 717, 12 S.E. 1058; Powell v. State, 88 Ga. 32, 13 S.E. 829; Ayers v. State, 3 Ga.App. 305 (1), 59 S.E. 924. "Still another reason given why the description should be definite is that a judgment may be pleaded in bar of a subsequent prosecution for the same offense." Walthour v. State, supra, page 76 of 114 Ga. 39 S.E. 872; Brown v. State, supra, page 561 of 116 Ga. 42 S.E. 795; 12 Enc. Pl. & Pr. 979. In what have been termed "compound larcenies" (Melvin v. State, 120 Ga. 490, 491, 48 S.E. 198), very meager descriptions of the property stolen have been held sufficient, even against a special demurrer; as, for instance, in a case of larceny after trust where the property was described as "15 head of beef cattle" (Sanders v. State, 86 Ga. 717, 12 S.E. 1058, 1059), and in a case of larceny from the person of "one watch and chain" (Powell v. State, 88 Ga. 32, 13 S.E. 829, 830), and in a case of larceny from the house where the description was "one double-case silver watch" (Patterson v. State, 122 Ga. 587, 50 S.E. 489, 491); it being deemed in such cases that "the allegations in reference to the aggravating fact serve to individualize the transaction, and a more general description of the property is permissible *** than would be permitted in indictments for simple larceny." Melvin v. State, supra, page 491 of 120 Ga. 48 S.E. 198, where it was held that in a case of simple larceny "one shovel, of the value of one dollar," was an insufficient description of the thing alleged to have been stolen. The same principle was applied in Ayers v. State, 3 Ga.App. 305, 59 S.E. 924, where the charge was that the defendant committed simple larceny by stealing "one Eclipse Frick engine, 25 horse power, 1 Frick box boiler, 3 log carts, 1 set lumber trucks, and track irons." In the Ayers Case, in addition to the actual description of the articles stolen, as stated above, the indictment charged that the property had been levied on by a constable under a described attachment. The court said: "The general description aided by the more definite allegation that it was the property seized under a certain levy sufficiently individualized the transaction," and differentiated the case from cases like the Walthour and Melvin Cases, su...