Holmes v. State

Court of Appeals of Georgia

Holmes v. State

92 S.E. 963, 20 Ga. App. 181, 1917 Ga. App. LEXIS 787

CourtCourt of Appeals of Georgia

DecidedJune 13, 1917

Docket8746

StatusPublished

Cited by3 cases

This text of 92 S.E. 963 (Holmes v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Holmes v. State, 92 S.E. 963, 20 Ga. App. 181, 1917 Ga. App. LEXIS 787 (Ga. Ct. App. 1917).

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Opinion

George, J.

1. The defendant was indicted for the larceny of “one black barrow hog, with white feet and white spots in face, . . the property of D. E. Jones” (the prosecutor). The question raised is whether the evidence shows the hog stolen to be the hog described in the indictment. The testimony tended to show that the hog stolen had some small white spots on its body, in addition to the white spots on its face and white feet as alleged, and the general color of its body was black. This is sufficient. It was ruled in. Timmons v. State 14 Ga. App. 802 (82 S. E. 378); “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 [182]*182■ 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.” Compare Crenshaw v. State, 64 Ga. 449, where it was said: “The indictment charged the stealing of ‘one blue hog, to wit, a sow weighing about one hundred and forty pounds, and having the marks following, to wit, a swallow fork in the right ear and a smooth crop in the left ear/ The description proved at the trial differed from the foregoing in two respects: first, the sow, though 'blue, had a narrow white list around her; and, secondly, the left ear bore the swallow-fork, and the right ear the smooth crop. Held, that the narrow white list did not conflict with the general description as to color given in the indictment; but that the earmarks proved varied materially from those alleged, and for this reason the prisoner was improperly convicted.”

■ 2. The evidence was sufficient to warrant .a conviction, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

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George, J.

1. The defendant was indicted for the larceny of “one black barrow hog, with white feet and white spots in face, . . the property of D. E. Jones” (the prosecutor). The question raised is whether the evidence shows the hog stolen to be the hog described in the indictment. The testimony tended to show that the hog stolen had some small white spots on its body, in addition to the white spots on its face and white feet as alleged, and the general color of its body was black. This is sufficient. It was ruled in. Timmons v. State 14 Ga. App. 802 (82 S. E. 378); “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 [182]*182■ 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.” Compare Crenshaw v. State, 64 Ga. 449, where it was said: “The indictment charged the stealing of ‘one blue hog, to wit, a sow weighing about one hundred and forty pounds, and having the marks following, to wit, a swallow fork in the right ear and a smooth crop in the left ear/ The description proved at the trial differed from the foregoing in two respects: first, the sow, though 'blue, had a narrow white list around her; and, secondly, the left ear bore the swallow-fork, and the right ear the smooth crop. Held, that the narrow white list did not conflict with the general description as to color given in the indictment; but that the earmarks proved varied materially from those alleged, and for this reason the prisoner was improperly convicted.”

■ 2. The evidence was sufficient to warrant .a conviction, and the court did not err in overruling the motion for new trial.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.

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92 S.E. 963, 20 Ga. App. 181, 1917 Ga. App. LEXIS 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holmes-v-state-gactapp-1917.

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