Berry v. State , 92 Ga. 47 ( 1893 )

Simmons, Justice.

1. The indictment under which the defendant was convicted charged that he broke and entered “ the storehouse of Woodlawn, Leo and Macedonia Alliance cooperated store.” He moved to arrest the judgment because the indictment failed to allege ownership. This objection, if good, should have been taken before trial, and is not cause for arresting the judgment after a verdict of guilty. Code, §4629; Hatfield v. The State, 76 Ga. 499.

2. There is no evidence in the record that the storehouse was known as “Woodlawn, Leo and Macedonia co-operated store,” or was owned by any corporation or association of persons under that name, or indeed that any such organization or concern existed. It appears that certain associations existed under the names respectively of the “Woodlawn Alliance,” the “Leo Alliance ” and the “ Macedonia Alliance,” but it does not appear that they co-operated in running the business conducted at this store, or that they owned the property together. On the contrary, it was shown that the “ Macedonia Alliance ” had no interest at all in the property or the business. According to the evidence, the goods belonged to an association of persons and “sub-alliances ” who operated the business, and whose respective interests were represented by shares, a small portion of the shares belonging to the “ Woodlawn” and “ Leo” alliances, and the remainder to individuals independently of any organization; and this association, or the store conducted by it, was described simply as “ the alliance co-operative store.” The evidence, therefore, fails to support the indictment. The rule is well settled that ownership must be proved as laid in the indictment. Such proof, being descriptive of the identity of the offence, is held necessary even where ownership is needlessly alleged. 1 Bishop, Crim. Proced., 3d ed. §§488, 488b, 582-4; 1 Starkie, Crim. Pl., 2d ed. 206. And see Watson v. The State, 64 Ga. 61; Crenshaw v. The State, Id. 449. The evidence, moreover, fails to show any proof of venue. We have examined the record carefully, and it is wholly silent on this point. “ The venue is a jurisdictional fact, and must be proved by the State as a part of the general case, otherwise a conviction is unwarranted ; and the lack of sufficient evidence of the venue is covered by the exception that the verdict is contrary to law and without evidence to support it.” See Futch v. The State, and cases cited, 90 Ga. 472, 16 S. E. Rep. 102, 103. The court below erred, therefore, in not granting a new trial. Judgment reversed.