Teal v. State
| Decision Date | 08 December 1903 |
| Citation | 45 S.E. 964,119 Ga. 102 |
| Parties | TEAL v. STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. The refusal of a continuance is not cause for a new trial when the accused is not hurt thereby.
2. Challenge to the array is not the proper method of raising the question of the disqualification of individual jurors.
3. An indictment for simple larceny, which charged the theft of "one horse of the female sex, said animal being a dark bay mare," was sufficiently specific as to the nature character, and sex of the animal.
4. As to the ownership of the animal alleged to have been stolen the evidence fully sustained the charge as laid in the indictment.
5. It was no cause for a new trial that the court charged as follows: "Now, if you find beyond a reasonable doubt from all the testimony submitted in the case, including the statement of the defendant, provided you see fit to give that statement any weight under the rules I have given you in charge." Standing alone, this incomplete sentence was harmless.
6. The alleged newly discovered evidence was merely cumulative.
7. The verdict was warranted by the evidence, and the court did not err in refusing a new trial.
Error from Superior Court, Douglas County; A. L. Bartlett, Judge.
Jordan Teal was convicted of horse stealing, and brings error. Affirmed.
J. S. James and Roberts & Hutcheson, for plaintiff in error.
W. K. Fielder, Sol. Gen., and W. A. James, for the State.
Jordan Teal was convicted under an indictment charging him with simple larceny, viz., horse stealing. Before trial he demurred to the indictment, and the demurrer was overruled. A new trial having been denied him, the case is here upon his bill of exceptions assigning error upon the overruling of the demurrer and the refusal of a new trial.
1. One of the grounds of the motion for a new trial was that the court erred in refusing to continue the case on the motion of the accused. It appears that E. H. Rice was an uncle of the accused, and a material witness for him; that the accused desired Rice's assistance in conducting the defense; that Rice's wife's condition was such that his presence at home might be required at any minute; that Rice was in court when the case was called for trial, but desired to leave for home at once, on account of his wife's condition. The judge announced that he would not continue the case, but would arrange for Rice to be at home in the event he should be needed there. Rice remained at court during the trial, aided the accused in conducting his defense, and testified as a witness in his behalf. Under the circumstances, we fail to see how the accused was hurt by the refusal of the continuance.
2. The accused challenged the array of jurors put upon him on the ground that 9 of the panel of 48 (giving their names) were related either to the prosecutor or to himself within the prohibited degree, and the challenge was overruled. In the motion for a new trial error is assigned upon this ruling. It is well settled that a challenge to the array is not the proper method of raising the question of the disqualification of individual jurors. Such a challenge goes only to the form and manner of making up the panel. Pen. Code 1895, § 972. If individual jurors are disqualified, objection should be made by challenge for cause. Id. § 973; Humphries v. State, 100 Ga. 260, 28 S.E. 25 (2).
3. The indictment charged the accused with stealing "one horse of the female sex, said animal being a dark bay mare, and having a white spot in her forehead, and about 12 years old, weighing about one thousand pounds, and commonly called by the name of 'Etta." The accused specially demurred to the indictment on the ground that it did not describe the animal alleged to have been stolen "with sufficient certainty to put defendant upon notice of the nature, character, and sex" of the same, that it did not appear from the charge whether the animal was a mare of the horse, mule, or ass species. This demurrer was overruled, and the accused excepted. Our statute in reference to horse stealing contains the following provisions: "Horse-stealing shall be denominated simple larceny, and the term 'horse' shall include mule and ass, and each animal of both sexes and without regard to the alterations which may be made by artificial means." Pen. Code 1895, § 156. "The offense shall, in all cases, be charged as simple larceny, but the indictment shall designate the nature, character, and sex of the animal, and give some other description by which its identity may be ascertained." Id. § 157. In our opinion, this indictment sufficiently described "the nature, character, and sex" of the animal alleged to have been stolen. The first clause of the description, "one horse of the female sex," clearly described the genus of the animal and its sex. According to so much of the description, the animal alleged to have been stolen was of the horse kind, and was a female. Therefore, if the words which immediately follow, viz., "said animal being a *** mare," are construed as not referring to a particular species of the genus horse, but as simply indicating a female of that genus, they are entirely superfluous, being but a repetition, in different language, of the description already given. The fact that they immediately follow the clause which describes both the genus and the sex shows that they were intended to make the description more definite. They do make it more definite by indicating the species of the animal alleged to have been stolen; for it is a matter of common knowledge and observation that among our people the word "mare," when used without a word of qualification, is understood to mean a female of the horse species. We apprehend that one rarely, if ever, hears the expression "a mare horse" employed to describe a female of the species horse, but that the term universally used in this state for this purpose is the single word "mare." On the other hand, when a female of the species mule is intended the expression used is "a mare mule," and when a female of the species ass is meant, the word "jenny" is used. We think the description in the indictment was amply sufficient to inform the accused that he was charged with having stolen a female of the species horse, and therefore the requirement of the statute that "the indictment shall designate the nature, character, and sex of the animal" was complied with.
The plaintiff in error relies upon the decision rendered in Brown's Case, 86 Ga. 633, 13 S.E. 20, where it was held "An indictment for simple larceny, charging the theft of 'one dark bay horse with one white spot on the end of his nose and one small white spot in his forehead,' did not describe the property alleged to have been stolen with the accuracy and...
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