Howard v. State

60 S.E. 328, 3 Ga. App. 659, 1908 Ga. App. LEXIS 403

• Court: Court of Appeals of Georgia
• Decided: February 14, 1908
• Docket: 936
• Status: Published

Opinion

Powell, J.

The indictment contained two counts: the first, larceny from a railway car'; and the second, simple larceny. On the trial, the State abandoned the second count and insisted upon the first alone. The goods stolen were taken from a railway car that left Chattanooga, Tennessee, one night and arrived at Cartersville in Bartow county the next morning. On the next day the defendant was found in possession of a portion of the stolen goods, at Dalton, in Whitfield county, between Chattanooga and Cartersville. The proof was that the car left Chattanooga sealed and was found at Cartersville the next morning with the seals broken. The goods were then for the first time missed. In our own minds we have no doubt of the defendant’s criminal complicity in the larceny; but, under the decision in Williams v. State, 105 Ga. 743 (31 S. E. 749), there was no sufficient proof of the venue as to the compound offense of stealing from a railroad car. If the conviction had been on the count charging simple larceny, we woitld have upheld it as against the contention that the venue was not shown; because the thief may be indicted in any county into which he takes the stolen goods; nor would the fact that he had ■obtained them by burglary or by entering a railroad car prevent his conviction of simple larceny. While, under the decision of the Supreme Court in Lee v. State, 64 Ga. 203 (37 Am. R. 67), if the goods were actually stolen before the car left Tennessee, a conviction could not be sustained for the mere bringing of them into a county in this State, still there is nothing in the record to justify the finding that they were stolen in Tennessee. There were some minor inaccuracies in the charge, but we will not deal with these, as they are not likely to be repeated on anothér trial.

Judgment reversed.