Burkett v. State , 133 Ga. App. 728 ( 1975 )

Evans, Judge,

concurring specially.

The indictment alleges the theft of seven cows, three of which were Black Angus, and four of which were Black Angus mixed with Shorthorn.

I concur in the judgment of the majority, which affirms the conviction on the theory that where several articles are alleged to have been stolen, and the jury convicts as to each of the allegedly stolen articles, the verdict should not be set aside if one or more (but not all) of the articles are proven to have been stolen. See Lowe v. State, 57 Ga. 172 (2).

I do not agree with the majority opinion’s statement that the allegata and probata as to the entire seven cows was sufficiently met. The evidence of the prosecutor is that all of his cows were Black Angus mixed with Shorthorn; whereas the allegations of the indictment can have no other meaning than that three of the cows were Black Angus and were not mixed; and that only four of the cows were Black Angus mixed with Shorthorn.