Walthour v. State

• Decision Date: 06 November 1901
• Citation: Walthour v. State, 114 Ga. 75, 39 S.E. 872 (Ga. 1901)
• Parties: WALTHOUR . v. STATE.
• Court: Georgia Supreme Court

39 S.E. 872

114 Ga. 75

WALTHOUR .

v.STATE.

Supreme Court of Georgia.

Nov. 6, 1901.

LARCENY—INDICTMENT—DESCRIPTION OF STOLEN PROPERTY.

A bill of indictment, charging one with simple larceny, in which the property alleged to have been stolen, as therein set out, was "a lot of cord wood, " of a stated value, belonging to named persons, should have been quashed on demurrer for want of a sufficient description of the property alleged to have been stolen.

(Syllabus by the Court.)

Error from city court of Floyd county; J. H. Reece, Judge.

John and Jiles Walthour were indicted for larceny.From the verdict of conviction, John brings error.Reversed.

O. E. Carpenter, for plaintiff in error.

Moses Wright, Sol.Gen., for the State.

LITTLE, J. John and Jiles Walthour were indicted by the grand jury of Floyd county for the offense of simple larceny.On the charge thus preferred they were tried at the September term, 1901, of the city court of Floyd county, and a verdict of guilty returned as to John Walthour, and a verdict of not guilty as to Jiles.The defendants filed a demurrer on the following grounds: (1) Because the cord wood alleged to have been stolen is not described with that certainty required by law; (2) because the indictment did not disclose what kind of cord wood was stolen; and (3) because the indictment did not describe the number of cords, or amount of cords, and did not charge the theft of any specified number of cords of wood, or of any specified amount of wood.This demurrer was overruled, and the defendants excepted.Walthour also filed a motion for a new trial on the general grounds, which was heard and overruled by the trial judge, and the accused excepted to the order overruling his motion.As we think the judge erred in not sustaining the demurrer, it will not be necessary to consider the exceptions based upon the overruling of the motion.The indictment charged the defendants with stealing "a lot of cord wood" of the personal goods of certain named persons, "of the value of ten dollars, " and the sole question raised by the demurrer is whether this description of the property alleged to have been stolen is sufficient to meet the requirements of the law.

When the subject-matter of a larceny is horses, cows, or hogs, the Penal Code prescribes certain elements of description, but in the case of other personal chattels the rule of the common law prevails.Mr. Wharton, in his work on Criminal Pleading and Practice, states the rule thus: "When, as in larceny, * * * personal chattels are the subject of an offense, they must be described specifically by the names usually appropriated to them, and the number and value of each species or particular kind of goods stated."Section 206.In the case of Davis v. State, 40 Ga. 229, Warner, J., quotes this principle from Archb.Or. Pl., in almost the identical words, and states that the principle of the common law is still of force in this state.See, in this connection, Rap.Larceny, § 75;2 Bish. Cr. Proc. § 699.Mr. Bishop, in his work...