Belcher v. State

91 S.E. 879, 19 Ga. App. 439, 1917 Ga. App. LEXIS 140

Opinion

Luke, J.

1. Offenses differing from each other may be included in the-same indictment, provided they are of the same nature and differ only in degree. Hoskins v. State, 11 Ga. 92; Gilbert v. State, 65 Ga. 449; Tooke v. State, 4 Ga. App. 495 (61 S. E. 917).

2. The offense of willfully and maliciously attempting to destroy or injure a dwelling-house, or store-house, etc., with dynamite or other explosive substance (Penal Code of 1910, § 787), and the offense of having in “possession in the day or nighttime any engine, machine, jimmy, tool, false key, pick-lock, bit, nippers, nitroglycerine, dynamite cap, dynamite, or other explosive, fuse, steel wedges, drills, tap-pins, or other implements or things adapted, designed, or commonly used for the commission of burglary, larceny, safe-cracking, or other crime, with intent to use or employ or allow the same to be used or employed in the commission of a crime, or knowing that the same are intended to be so used”.(Acts 1910, p. 136; Park’s Penal Code, § 183 (a)) are-not such kindred crimes that the two offenses may be joined in the same indictment.

3. Where in the same indictment the grand jury, in one count, charged the defendant with a violation of § 787 of the Penal Code, supra, and in another count charged him with the crime defined in the act of 1910, supra, there was a misjoinder of counts; and the court erred in failing to sustain a proper demurrer thereto.

Judgment reversed.

Wade, G. J„ and George, J., eoneúr.