Lanier v. State

On the trial of a defendant charged with larceny, where there is some evidence descriptive of the stolen property which is substantially conformable to the description alleged in the indictment, and nowhere contradictory thereof, the identity of the stolen property is a matter addressed peculiarly and solely to the jury, and in such case there is no fatal variance between the allegata and the probata. See Timmons v. State, 14 Ga. App. 802 (82 S.E. 378); Cross v. State, 64 Ga. 443 (2).

DECIDED DECEMBER 5, 1947. An indictment was returned to the Superior Court of Bulloch County charging Alex Lanier, and two others with simple larceny (hog stealing), for that, the said Lanier and the two others on July 2, 1947, in Bulloch County, took and carried away with intent to steal the same one certain black and red-spotted sow hog, medium-size, weighing about 125 pounds; one certain medium-size light sandy-colored sow hog weighing about 125 pounds; and one certain medium-size sandy-colored barrow hog weighing about 125 pounds, all of the value of $80, and of the personal property of F. C. Parker Sr. and F. C. Parker Jr. On July 30 Lanier was tried, but those jointly indicted with him were not tried at the same time. From the evidence the jury were authorized to find: At about 9:30 on the night of July 2, 1947, the defendant Lanier and Willie Thomas and Dave Christian, who were jointly indicted with him, drove to the slaughterhouse located in Statesboro, Bulloch County, without lights. This slaughterhouse was the property of Sam Diamond, and was adjacent to a stockyard belonging to the prosecutors herein, F. C. Parker Sr. and F. C. Parker Jr. Upon parking the car near a building on the slaughterhouse property, the defendant Lanier and his two confederates proceeded to the stockyard property, turned three hogs out, and drove them through gates and along lanes until they reached a pen on the slaughterhouse property. There one of the three killed two of the hogs with an axe. This was not the regular place for slaughtering hogs. At this point they were fired upon by E. C. Blackburn and, surprised, the defendant Lanier and Dave Christian ran; Willie Thomas remained on the premises. Later, upon learning that they were wanted on this charge of hog stealing, Dave Christian and the defendant surrendered themselves at the sheriff's office. Willie Thomas was an employee of Sam Diamond, and as such worked in and around the slaughterhouse. On this occasion he had a fire built up in the back yard of his house, which was located somewhere near the slaughterhouse and stockyard premises. Willie Thomas was not immediately charged with the theft of the hogs, but as this charge later developed, he absconded and has not been apprehended. Dave Christian, who testified as a witness for the defendant, and the defendant himself, in his statement, insisted that they were helping Thomas, knowing him to be an employee of Mr. Diamond with duties to perform in and around the slaughterhouse, and that in good faith they did not know the hogs were being stolen. Their flight was explained by a slight suspicion on their part aroused by the killing of the hogs out in the pen instead of inside the slaughterhouse, the usual place for killing hogs, also by the work being done without turning on lights, and by a fire known to be in the yard of Thomas by Christian and no fire or hot water at the slaughterhouse. Just as this suspicion was becoming aroused they were surprised in their work by shots being fired, and thereupon they ran.

The defendant insists that there is a fatal variance between the allegata and the probata as to the description of the stolen property. Having hereinbefore set out the description as charged in the indictment, we will now examine the evidence as to the description of the hogs. E. C. Blackburn, a witness for the State and an employee of the prosecutors — who, upon being notified by Rufus Jones another witness for the State that the theft of the hogs was being consummated, appeared on the scene and fired upon the defendant and his confederates — testified regarding the description of the hogs as follows: "At the time I knew about the hogs which you have just described in reading the indictment to the jury being there in the pen. Those hogs were in the barn, under the shed, in the pen. They were Mr. Parker's hogs. As to whether or not I can give you a description of those three hogs — yes, sir. One of them was kinda of a red, black, sandy hog, weighed about 125 pounds, and the other two were black sandy hogs. One was a barrow and two were gilts. They all weighed about the same, about 125 pounds each. The two we found dead fits the description of two we have described there in the indictment. The other hog was standing there side of the two dead ones in the aisle." On cross-examination the same witness testified regarding the description as follows: "There was a black sandy hog and two white and black spotted gilts; the other was a barrow. There were three hogs involved altogether. One was a black sandy hog and the other two were black and white spotted kinda sandy." F. C. Parker Jr. testified for the State as follows: "These hogs we are talking about belonged to myself and my father. These three hogs are worth approximately $80. When this was reported to me I went to the stockyards, yes, sir. These hogs were in a pen on Sam Diamond's property, that adjoins my property, when I got there. He had some pens back of the slaughterhouse and they were in one of those pens. Two of the hogs had been killed and the other one had not been killed." This is all the evidence in the record dealing with the description of the hogs.

The jury found the defendant guilty and fixed his punishment at not less than two nor more than two years in the penitentiary and recommended that he be punished as for a misdemeanor. This recommendation was followed by the trial judge and he was sentenced accordingly. The defendant filed a motion for new trial based on the general grounds only, and on August 16 the trial judge overruled the same. This judgment is assigned as error. In his brief counsel for the defendant insists only that the evidence was not sufficient to support the verdict, as contended in the general grounds of the motion for new trial, because there is, as he contends, a fatal variance between the proof and the pleadings as to the description of the hogs. All the evidence contained in the record regarding the size of the hogs is that they weighed approximately 125 pounds each, the size alleged. All the evidence contained in the record as to the value of the hogs is that all three were worth approximately $80, the amount alleged. All the evidence contained in the record with regard to the sex of the hogs is that two were sows or gilts, and that one was a barrow, the sex alleged in the indictment. However, the evidence is somewhat confusing as to which of the hogs were sows and which was a barrow. It will be noted from the statement of facts hereinbefore set out that the witness Blackburn said of the hogs that the defendant and others were in the act of stealing when he surprised them; "I knew about the hogs which you have just described when reading the indictment to the jury being there in the pen." He also testified that "one was a red, black sandy hog, two black sandy hogs, one barrow, two gilts." He also testified: "The two we found dead fit the description of two we have described there in the indictment." There was no demurrer to the indictment. It is not insisted that the description as alleged in the indictment was insufficient, it being contended only that the same was not established by the evidence.

In Timmons v. State, 14 Ga. App. 802 (1) (supra), the following was held: "While (as is frequently the case in such matters) the different witnesses disagreed in describing the color of the cow alleged to have been stolen, there was some evidence, descriptive of the color of the cow, which was substantially conformable to the description in the indictment; and since the comparative weight to be attached to the testimony of the different witnesses is a matter addressed peculiarly and solely to the jury, it can not be said that there was a fatal variance between the allegata and probata." In Cross v.State, 64 Ga. 443 (2), it was held: "The allegata and probata sufficiently agree where the hog is described as black-spotted and weighing twenty-five pounds, and proven to be of that weight and having black spots, though sandy-colored generally. It makes no difference that the special presentment charges that the hog's mark was unknown, and the proof is that he was in mark of the witness, who owned and identified him."

On the trial of a defendant charged with larceny, where there is some evidence descriptive of the stolen property which is substantially conformable to the description alleged in the indictment, and nowhere contradictory thereof, the identity of the stolen property is a matter addressed peculiarly and solely to the jury, and in such case there is not a fatal variance between the allegata and the probata.

In the instant case, the evidence as to the description of the stolen hogs sufficiently conformed to the description in the indictment to make their identity a question for the jury. By its verdict the jury resolved this question against the defendant, and the trial judge gave the same his approval. This court will therefore not disturb it.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.