Yarborough v. State

• Decision Date: 23 December 1890
• Citation: 12 S.E. 650,86 Ga. 396
• Parties: YARBOROUGH v. STATE
• Court: Georgia Supreme Court

12 S.E. 650

86 Ga. 396

YARBOROUGH v. STATE

Supreme Court of Georgia

December 23, 1890

1. The husband is head of the house, though the ownership be in the wife. Where both reside together in a house belonging to her it may be described as his house in an indictment for burglary.

2. To declare the law applicable to a given state of facts is no expression or intimation of opinion as to whether any of the facts referred to do or do not exist in the case on trial.

3. Where both burglary and larceny from the house are charged in the indictment, a general verdict of guilty convicts the accused of burglary; and whether the larceny be proved or not is immaterial.

Syllabus by the Court.

Error from superior court, Bartow county; MILNER, Judge.

J.A Baker, for plaintiff in error.

A.W Fite, Sol. Gen., for the State.

BLECKLEY J.

The indictment charged both burglary and larceny from the house. The house of B.T. Leake, and the braking and entering were charged to be with intent to steal the goods and chattels of said B.T. Leake. The indictment then proceeded to allege a felonious stealing from the house of a locket of the value of $10, the property of Mattie Leake. The verdict was general finding of guilty.

1. The evidence as to the ownership of the house was that "B.T Leake has everything in his wife's name. His wife claimed the house as her own, but they both lived in it together; and the witness, their daughter, did not know whether her father claimed it or not." The court charged the jury on this subject as follows: "On the question of ownership, the court will charge you that if the proof in this case shows that B.T. Leake occupied this house, lived in it with his wife and family, at the time of the commission of the offense charged in the indictment, then that is sufficient to support the charge of burglary. You look to the proof, and see how that was. See whether or not he occupied the premises; whether he lived on the premises. It is not material whether he held under Mrs. Leake or any one else. If he occupied the premises, and was in possession of the premises, it was such ownership as would protect him from burglary." The court refused to charge written request presented by the counsel for the accused as follows: "If B.T. Leake occupied the house mentioned in the bill of indictment, not in his own right, but in the right of another, and so claimed, and that other also, at the same time, occupied the house, then that would not be such proof of ownership as would support this bill of indictment." We think there is no doubt that, when a married man occupies a...