Smith v. State , 38 Ga. App. 265 ( 1928 )

Luke, J.

1. Under the evidence in this ease, the jury had the right to conclude that the defendant took the prosecutor’s money from him privately and without his knowledge, some time during the course of a drunken orgy in which they were indulging, and not at the time the accused (as testified by the prosecutor) knocked him from the wagon in which they were traveling. Therefore the verdict of guilty under the accusation charging the defendant with larceny from the person, .under section 172 of the Penal Code (1910), can not be set aside by this court upon the theory that the defendant was not guilty of the offense charged and could only have been legally convicted of robbery by force under section 148 of the Penal Code. The difference between the two offenses is pointed out in Bowen v. State, 16 Ga. App. 110 (84 S. E. 730).

Decided June 12, 1928. Carlisle Cobb, for plaintiff in error. Henry H. West, solicitor-general, contra.

2. The sole special ground of the motion for a new trial is without merit.

Judgment affirmed.

Broyles, G. J., and Bloockoorth, J., concur.