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KYLER v. THE STATE.
36277.
Indictment for larceny. Before Judge Stephens. Laurens Superior Court. May 1, 1956.
CARLISLE, J.
1. "Simple theft or larceny is the wrongful and fraudulent taking and carrying away, by any person, of the personal goods of another, with intent to steal the same." Code 26-2602. An indictment charging the taking and carrying away, with intent to steal, of $800 belonging to another person, states the offense of simple larceny and is good as against general demurrer.
2. "In an indictment for simple larceny it is not necessary to state the location of the property or place from which it was taken and carried away, further than to state that it was in the county in which the court had jurisdiction, unless a statement of the location is a descriptive averment essential to the identification of the property alleged to have been stolen." Gibson v. State, 13 Ga. App. 67 (b) (78 S. E. 829), and see Peck v. State, 55 Ga. App. 161 (189 S. E. 372).
3. Every defendant in a criminal case is entitled to be tried under an accusation or indictment perfect in form and substance; and where, under an indictment charging him with the larceny of $800 in money from the yard of a named person, the defendant demands to know whether the money is in currency or in coin, he is entitled to such information in order to prepare his defense properly. If the money be in coin, the charge is one for a misdemeanor, if in currency, one for a felony. and whether he is charged with a felony or a misdemeanor will affect the conduct of his trial, especially with respect to the composition of the jury panels and the number of challenges allowed, and perhaps in other respects.
In an indictment returned by the grand jury of Laurens County, the defendant, Willie Mae Kyler, was charged with "larceny of money" in that county for that on April 20, 1956, she "did unlawfully, fraudulently, feloniously, with intent to steal, did with a garden rake, secretly dig up a certain fruit jar from the back yard of the dwelling house and a place of business, the aforesaid fruit jar containing $800 dollars, within the curtilage of the aforesaid dwelling house, the aforesaid fruit jar having been placed in a small pit for the purpose of security from fire and theft, said fruit jar and the aforesaid $800 dollars, having been placed in the aforesaid pit for the purposes as stated aforesaid and being a part of a small place of business and the aforesaid dwelling house, said place of business being a small eating and other mercantile shop, the same being an individual property and money located, on premises jointly owned by Marshall Coney, and Katie Coney, and individual savings received from Katie Coney's work and labor which she received for baby sitting, and wages at the Georgia Plywood Mill, at Dublin, Georgia, all of the same being in her possession and control on said property with the consent of her said husband, Marshall Coney, and after digging did then and there take and carry away the same with the aforesaid felonious and fraudulent intent to steal the same, and being of the value of $800 dollars of the property of Katie Coney, and in her possession and control, individually as aforesaid, and knowingly and fraudulently taken with the aforesaid intent to steal."
To this indictment the defendant demurred upon the following grounds: "(1) No criminal offense is set out therein. (2) The description of the money alleged to have been taken is not sufficiently described. It is alleged that $800 was taken and whether this was in silver or currency is not stated nor whether it was issued by the United States Government or some other government and defendant is entitled to have a more accurate information on this point to prepare and make her defense. (3) The location of the premises from which this money is alleged to have been feloniously taken is not identified sufficiently to inform the defendant sufficiently of the charge against her. The indictment undertakes to specify the place from which certain money was taken and carried away and undertakes to make the location a descriptive term as to where the fruit jar was buried without informing where the premises of Marshall and Katie Coney are located in particularity and the fruit jar is not otherwise described and has no further identification than a certain fruit jar. (4) There is no crime known to the laws of Georgia of larceny from the curtilage."
The trial court overruled these demurrers and the defendant assigns error here upon that judgment.
1, 2. Headnotes 1 and 2 are self-explanatory and require no elaboration.
3. While after verdict the defendant in a criminal case will not be heard to complain of technical defects as to the form of the indictment under which he was tried (Bell v. State, 41 Ga. 589; Davis v. State, 116 Ga. 87, 42 S. E. 382; Lewis v. State, 55 Ga. App. 743, 191 S. E. 278), every defendant in a criminal case is entitled to be tried under an indictment perfect in form and substance. Harris v. State, 58 Ga. 332 (2), 334; Lanier v. State, 5 Ga. App. 472 (63 S. E. 536). Many cases following the rule set forth in Code 27-701, dealing with the sufficiency of accusations and indictments, have held that an accusation or indictment substantially in the language of the Code is sufficient to withstand demurrer, but that rule has its limitations, is not of universal application, and does not cover all crimes. In Youmans v. State, 7 Ga. Ap.p. 101, 113 (66 S. E. 383), this court had the following to say: "In construing . . . [Code 27-701], in the case of Amorous v. State, 1 Ga. App. 313 (57 S. E. 1000), we said, 'It means that an indictment conforming substantially to its requirements will be sufficient, but it is not designed to deny the one accused of crime the right to know enough of the particular facts constituting the alleged offense to be able to prepare for trial.' It is true . . . that 'there are many offenses that can be stated in the language of the Code, such as playing cards, selling liquor, or carrying a pistol concealed; there are many other offenses that would not be sufficiently charged if stated merely in the language of the Code, such as murder, larceny, perjury, etc. A description of these latter offenses or a description of what the defendant did is necessary to make a legal charge, and to enable the defendant to prepare a defense.' A distinction is to be drawn between charges which are violations of purely statutory offenses and those cases which were penalized under the common law. Naturally, where the offense is statutory, the language of the accusation must follow more closely the language of the statute, and be restricted by it more, than where the charge relates to a common-law offense, in which the details must necessarily be amplified in order to cover the definition of the common-law offense [which has been codified as such into our law]. Reference is made to this difference in United States v. Simmons, 96 U. S. 360 (24 L. ed. 819), in which the court said: 'Where the offense is purely statutory, having no relation to the common law, it is, as a general rule, sufficient in the indictment to charge the defendant with acts coming fully within the statutory description, in the substantial words of the statute, without any further expansion of the matter.' 'But to this general rule, there is the qualification, fundamental in the law of criminal procedure, that the accused must be apprised by the indictment, with reasonable certainty of the nature of the accusation against him, to the end that he may prepare his defense and plead the judgment as a bar to any subsequent prosecution for the same offense.' 'An indictment not so framed is defective, although it may follow the language of the statute.' "
In Walthour v. State, 114 Ga. 75 (39 S. E. 872), it is stated: "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, 206, 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.' In the case of Davis v. State, 40 Ga. 229, Warner, J., quotes this principle from Archbold's Criminal Pleading, in almost the identical words, and states that the principle of the common law [with reference to simple larceny] is still of force in this State. See, in this connection, Rapalje's Larceny, 75; 2 Bishop's Criminal Procedure, 699. Mr. Bishop, in his work just cited, states the object of the description to be 'to individualize the transaction and enable the court to see that they are, in law, the subjects of larceny . . . The description should be simply such as in connection with the other allegations, will affirmatively show the defendant to be guilty, will reasonably inform him of the instance meant and put him in a position to make the needful preparations to meet the charge.' See Sanders v. State, 86 Ga. 724 [12 S. E. 1058], where this author's rule is quoted with approval. Mr. Wharton, in his work above quoted, 208, further says: 'There must be such certainty as will enable the jury to say whether the chattel proved to be stolen is the same as that upon which the indictment is founded.' Still another reason given why the description should be definite is, that a judgment may be pleaded in bar of a subsequent prosecution for the same offense. 12 Enc. Pl. & Pr. 979." In an extremely well reasoned and documented case, this court had the following to say: "In what have been termed 'compound larcenies' (Melvin v. State, 120 Ga. 490, 491, 48 S. E. 198), very meager descriptions of the property stolen have been held sufficient even against a special demurrer . . . It being deemed in such cases that 'the allegations in reference to the aggravating fact serve to individualize the transaction, and a more general description of the property is permissible . . . than would be permitted in indictments for simple larceny.' " Pharr v. State, 44 Ga. App. 363 (161 S. E. 643). See also, in this connection, Burns v. State, 191 Ga. 60, 63 (11 S. E. 2d 350). At common law, when money was the subject of simple larceny, great specificity was required. The only cases from the appellate courts of this State dealing with the sufficiency of the description of money in accusations
and indictments which our research has disclosed are the following: Berry v. State, 10 Ga. 511 (larceny from the house); Bell v. State, 41 Ga. 589 (larceny from the person); Wilson v. State, 66 Ga. 591 (larceny from the person); Hillsman v. State, 68 Ga. 836 (burglary); Jackson v. State, 76 Ga. 551, 571 (embezzlement); Crofton v. State, 79 Ga. 584 (4 S. E. 333) (larceny after trust); Roberts v. State, 83 Ga. 369 (9 S. E. 675) (larceny of money); Allen v. State, 86 Ga. 399 (12 S. E. 651) (larceny from the house); Cody v. State, 100 Ga. 105 (28 S. E. 106) (larceny after trust); Humphries v. State, 100 Ga. 260 (28 S. E. 25) (robbery); Johnson v. State, 119 Ga. 257 (45 S. E. 960) (larceny of money); Cannon v. State, 125 Ga. 785 (54 S. E. 692) (larceny from the house); Frederick v. State, 127 Ga. 35 (55 S. E. 1044) (larceny from the house); Burns v. State, 191 Ga. 60 (11 S. E. 2d 350) (robbery); Maxwell v. State, 9 Ga. App. 875 (72 S. E. 445) (robbery); McNatt v. State, 27 Ga. App. 642 (109 S. E. 514) (larceny of money); Camp v. State, 31 Ga. App. 737 (122 S. E. 249) (embezzlement); Bivins v. State, 47 Ga. App. 391 (170 S. E. 513) (embezzlement); Lewis v. State, 82 Ga. App. 280 (60 S. E. 2d 663) (embezzlement); Tripp v. State, 89 Ga. App. 335 (79 S. E. 2d 591) (embezzlement). With the exception of the Roberts, Johnson, and McNatt cases, each of the cases which we have cited above involves the adequacy of the description of money involved in compound larceny, and those cases may be excluded from our consideration under the rule stated in the Pharr and Melvin cases, supra.
In the Johnson case, supra (headnote 2) it was held that "an indictment charging a person with stealing 'one hundred and twenty dollars in paper money, to wit, two twenty dollar bills, five ten dollar bills, and six five dollar bills', is not subject to demurrer on the ground that it does not disclose what kind of money was stolen, [t]he Supreme Court] . . . having held, in Allen v. State, 86 Ga. 399 that such a description of money means bank bills."
In the McNatt case, supra, under an indictment for larceny of money in almost the exact words of the Johnson case, the indictment was, after verdict, held to sufficiently describe the money.
In the Roberts case, supra, Chief Justice Bleckley suggests that the description, "one hundred dollars in greenback bills of the value of one hundred dollars," is demurrable as being too general in the matter of description, but ruled that this should have been taken advantage of by demurrer.
Our law, with reference to simple larceny, does not find its origin in common sense, but in the common law which was frequently based upon custom rather than reason. As long as 66 years ago, Justice Bleckley, in Allen v. State, 86 Ga. 399, pointed out the rather chaotic condition of our law on the subject of larceny--a condition which has not been remedied to this day--when speaking for the Supreme Court, he said: "The penal Code is in an unfortunate condition with respect to its provisions on the subject of larceny. By section 4414 [Code 26-2630], larceny from the house of any 'goods, money, chattels, wares or merchandise, or any other article or thing, under the value of $50' is punishable as a misdemeanor only, the penalty being that prescribed in section 4310. [By the Code of 1882, the punishment for the larceny of less than $50 was prescribed by what is now Code 26-605 (as for a misdemeanor). The punishments for larceny from the house are now contained in Code 26-2630.] By section 4406 [Code 26-2616], simple larceny, where the property stolen is a note, due bill, bank bill, or any paper securing the payment of money or other valuable thing, is punishable as a felony by imprisonment in the penitentiary from one to four years. The stealing of a bank note for one dollar outside of any building or structure is a felony, whilst stealing from a house anything whatever under the value of $50, is only a misdemeanor. Worse still, according to the Code as it now stands, the stealing of a million of dollars in gold or silver lying loose out of doors would be a mere misdemeanor, no punishment being prescribed for it save that laid down in section 4310 and this would be reached by virtue of section 4409 [Code 26-2625] under the phraseology 'all simple larcenies or thefts of the personal goods of another, not mentioned or particularly designated in this Code.' The larceny of paper money, under the description of bank bills, notes, etc., is mentioned and particularly designated, but not the larceny of metallic money or of money generally, unless the larceny is committed in a house, etc., or from the person."
While it may well be that the other averments of the indictment sufficiently particularized the larceny so as to inform the defendant of the transaction meant and to enable him to plead a judgment in that case in bar to a prosecution for the same transaction (see Dean v. State, 9 Ga. App. 571, 71 S. E. 932), he, by special demurrer, demanded to know whether the money alleged to have been stolen by him was in silver or in currency. To this information, under the ruling in the Allen case, supra, we think he was entitled so as to enable him to prepare his defense improperly. As has been pointed out, the larceny of currency outside a house is a felony, while the larceny of coin (gold, silver, or copper) is merely a misdemeanor. Whether the defendant is charged with a felony or a misdemeanor, bears strongly upon the conduct of his trial, especially with respect to the composition of the jury panels and the number of challenges allowed, and the preparation of his defense. Since the defendant was by the ruling of the trial court deprived of this information before going to trial, we must hold that the overruling of the special demurrer calling for this information was error.
The averments in the indictment that the person to whom the money belonged received it as wages for her work in Georgia permits of no other inference than that the money was legal tender issued by the United States Government.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.
W. W. Larsen, Solicitor-General, W. W. Larsen, Jr., contra.
C. C. Crockett, Aretha M. Smith, for plaintiff in error.
DECIDED SEPTEMBER 5, 1956.
Saturday May 23 02:29 EDT


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