Ray v. State
| Decision Date | 16 March 1908 |
| Docket Number | 988. |
| Citation | 60 S.E. 816,4 Ga.App. 67 |
| Parties | RAY v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
In prosecutions for larceny, if the ownership of the stolen property is unknown to the grand jury, it may be so charged in the indictment; but, if it appears upon the trial that it was in fact known or that in the exercise of reasonable inquiry it might have been ascertained with such certainty as would have justified the grand jury in asserting it, there is a fatal variance. However, if it was unknown to the grand jury at the time of their action on the case, its subsequent discovery and proof on the trial will not constitute such a variance.
[Ed Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, § 120.]
The corpus delicti of a larceny may be proved by circumstantial evidence.
[Ed Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, § 149.]
As a general rule in the prosecution of a particular crime evidence tending to show that the defendant has committed other offenses is not admissible; but, where the testimony offered has a distinct relevancy to the case on trial, it is not inadmissible merely because it also tends to show the defendant's connection with some other criminal transaction.
[Ed Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 822-835.]
Minor and immaterial errors in the admission of testimony will not work a reversal.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 3137.]
Trial judges should usually leave the examination of witnesses to the attorneys conducting the case. However, when the record fails to show any prejudice to the complaining party, a new trial will not be granted because the judge asked questions of witnesses.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2187.]
Error from Superior Court, Dougherty County; W. N. Spence, Judge.
Frank Ray, alias W. M. Moore, was convicted of larceny, and brings error. Affirmed.
J. W. Walters & Sons, for plaintiff in error.
W. E. Wooten, Sol. Gen., for the State.
The defendant was charged in the indictment with having stolen a bale of lint cotton; "the marks, brands, and owner being to the grand jurors unknown." It was shown that he was an employé of a compress company at Albany. His true name was Frank Ray. He caused a negro drayman to take a bale of cotton from the compress yard to a warehouse. It bore a tag in the name of W. M. Moore, and was stored in the warehouse under that name. He called at the warehouse, and in the name of Moore sold the cotton, taking in payment a check payable to W. M. Moore, which he indorsed in that name and collected at the bank. He sold and collected for two or three other bales of cotton in similar name and manner during the same season. He was not a cotton planter or anything of that kind, but was a mere compress foreman. The compress company had no customer by the name of W. M. Moore, and no such man was known in the community. About the time the bale of cotton in question was sold Carter & Patterson, of Sylvester, Ga., had sent a car load of cotton to the compress at Albany for compressing. The defendant checked it out, and reloaded it for shipment to Savannah. Upon reloading, the number of bales checked up all right, but later a bale of cotton purporting to be of this shipment was returned from Savannah showing that it was composed of compress "sweepings," and not of cotton of the character sent by Carter and Patterson to the compress at Albany. In this bale were found certain tags, etc., which indicated that the "sweepings" came from the floor of the Albany compress. In the course of a year's run several bales of these sweepings would accumulate at the compress, and it frequently devolved upon the defendant as one of his duties to bale them. When the bale of cotton alleged to have been stolen was delivered by the defendant to the drayman to be carried to the warehouse, a piece of the bagging had been cut entirely away from the bale at the place where the mark or brand is usually stamped. The defendant offered no explanation, introduced no testimony, and made no statement. He was convicted; and, his motion for a new trial having been overruled, he brings error.
1. That the defendant stole the bale of cotton in question admits of but little, if any, doubt. It is not one of those close cases in which slight error might warrant the grant of a new trial. The defendant presses the point that the indictment alleges that the ownership of the cotton was unknown, when, as a matter of fact, the state's testimony shows or tends to show that it belonged to Carter & Patterson. The insistence of the state is that the ownership of the cotton was not disclosed with any reasonable certainty by the evidence, and that the testimony as to Carter & Patterson's cotton was offered merely to show how the defendant could have accomplished the larceny of this or any other bale of cotton belonging to any of the compress company's customers. We may concede that it is strongly probable that the particular bale of cotton for the larceny of which the defendant stood charged belonged to Carter & Patterson. Still this rests so much on suspicion rather than proof that we are not willing to say that, even if all the facts as to this question which developed at the trial were known to the grand jurors at the time the indictment was returned, that body was not warranted in charging the ownership of the property as unknown. We understand the rule on that subject to be this: If the ownership of the stolen property is unknown to the grand jurors, it may be described in the indictment as being unknown or unknown to the grand jurors; but, if it appears that it was in fact known, or that in the exercise of reasonable inquiry it could have been ascertained with such certainty as would justify the grand jury in asserting that ownership, there is a fatal variance. If it was, in fact unknown at the time of the indictment, but is subsequently discovered, proof of it at the trial will not constitute a variance or render the indictment insufficient. Stringfield v. State, 25 Ga. 474, 476, and citations; Nelms v. State, 84 Ga. 466, 10 S.E. 1087, 20 Am.St.Rep. 377; Martin v. State, 115 Ga. 255, 41 S.E. 576; White v. People, 32 N.Y. 465; Cheek v. State, 38 Ala. 227; Commonwealth v. Hill, 11 Cush. (Mass.) 137; Rex v. Bush, Russ. & Ry. 372; Clark, Crim. Prac. 168, 229, 233, 340. The instructions of the court on this subject were fully favorable to the accused, and he has no just cause of...
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