Shepherd v. State

• Decision Date: 03 May 1915
• Docket Number: 5995.
• Citation: 85 S.E. 83,16 Ga.App. 248
• Parties: SHEPHERD v. STATE.
• Court: Georgia Court of Appeals

85 S.E. 83

16 Ga.App. 248

SHEPHERD v. STATE.

No. 5995.

Court of Appeals of Georgia

May 3, 1915

Syllabus by the Court.

A town calaboose is a public building within the intent and meaning of section 777 of the Penal Code of 1910. All buildings held, used, or controlled exclusively for public purposes by any department or branch of government, state, county, or municipal, are public buildings; and this is true without reference to the ownership of the building or of the realty upon which it is situated.

The defendant having been charged in the indictment with destroying, injuring, and defacing a certain calaboose, "the same being a public building belonging to the town of Fairburn," and there being no evidence whatever to show the truth of this allegation, it was error for the court to charge the jury that, "if you find from the evidence that the town of Fairburn was in possession of such building, and used the same as a station house and calaboose for the purpose of confining municipal prisoners, then you would be authorized to find that the town owned the building." Use and possession do not necessarily constitute title or ownership.

"The rule is well settled that the ownership must be proved as laid in the indictment. Such proof, being descriptive of the identity of the offense, is held necessary even where ownership is needlessly alleged." Berry v. State, 92 Ga. 48, 17 S.E. 1006, and cases there cited. It was therefore error for the court to overrule the defendant's motion for a new trial, based upon the ground that the state failed to show ownership of the building in the town of Fairburn, as alleged in the indictment.

Error from Superior Court, Campbell County; R. W. Freeman, Judge.

Johnnie Shepherd was convicted of injuring public property, and brings error. Reversed.

J. W. Culpepper, of Fayetteville, for plaintiff in error.

Geo. M. Napier, Sol. Gen., of Atlanta, for the State.

RUSSELL, C.J.

Judgment reversed.