Berrien v. State

9 S.E. 609, 83 Ga. 381, 1889 Ga. LEXIS 76

• Court: Supreme Court of Georgia
• Decided: April 24, 1889
• Status: Published

Opinion

Simmons, Justice.

Berrien was tried and convicted in the county court of Burke county, on the charge of obtaining credit by false represéntations of his wealth and respectability, in that he mortgaged a dark bay mare-mule to the prosecutor, representing to the prosecutor that the mule was his, the defendant’s, when in truth and in fact the mule did not belong to him. The defendant sued out a certiorari to the superior court, alleging among other grounds of error, that the verdict in the bounty court was contrary to law and the evidence, because the evidence introduced’ by the State did not show that he had mortgaged t.o the prosecutor a dark bay mare-mule. The judge of .the superior court refused to sustain, the certiorari, but affirmed the judgment.

We think the.court ought to haye granted a new trial on this ground. .The only evidence introduced on this subject.by the .State was the mortgage given by the defendant to the prosecutor. That ..mortgage described the mule as .“a mo.use-colored. mare-mule named Mag, fourteen years old.” It.is clear that.this proof did not correspond ..with the description of the mule set out in the indictment. . The indictment charges that he mortgaged a “dark bay mare-mule,” and the proof shows that it.was “a..mo,use-c,o.lored mare-m.ule named Mag.” A conviction for mortgaging a dark bay mare-mule would not .protect the defendant in a future indictment for having mortgaged a. mouse-colored mare-mule named Mag. We think that the case of Barclay v. The State, 55 Ga. 179, rules this case; and the

Judgment is reversed.