Johnson v. State

71 S.E. 507, 9 Ga. App. 409, 1911 Ga. App. LEXIS 582

• Court: Court of Appeals of Georgia
• Decided: June 7, 1911
• Docket: 3307
• Status: Published

Opinion

Hill, C. J.

(After stating the foregoing facts.)

1. Hnder an accusation which charges in the terms of the statute larceny from the house, a conviction may be had for simple larceny; the latter offense being included in the former. Brown v. State, 90 Ga. 454 (16 S. E. 204).

2. To complete the offense of larceny there must be a taking and carrying away, with intent to steal, the personal property described in the indictment: but the slightest change of location, whereby complete dominion of the article or property is transferred from the owner to the trespasser, is sufficient evidence of the asportation. Lundy v. State, 60 Ga. 143; 2 Russell on Crimes, 152. The evidence in this case showed that the cottonseed were at least taken up by the accused from the floor where the owner had left them and placed in a sack. The asportation, though slight, was sufficient to show this element of the offense. Indeed, we are inclined to think that a verdict of larceny from the house would not have been unauthorized, as there are some circumstances that tend to show that the accused took the cottonseed from the room of the prosecutor into .the room of the seed-house owned by the prosecutor’s brother. However, as there was some evidence supporting the theory of simple larceny, we do not think the matter is of sufficient legal consequence to justify the grant of a new trial.

3. The question of intent is one of fact, to be determined by the jury under the evidence, yet the writer doubts if the accused really had ány criminal intent in attempting to take the cottonseed from the house. We are sure that if his statement was the truth of the transaction, he did not have such intent. He was working for the prosecutor, and the cottonseed were scattered on the floor, apparently going to waste. It is a habit of negro employees to take possession of the overplus of the substance of their employers and appropriate it to their own use. The habit is one of the results growing out of the relation of master and servant, especially in our section, and, with the liberality characterizing the master in dealing with his servants, such conduct has been rarely treated as criminal. If the employers of negro servants in the South were to prosecute for larceny their servants who take possession of what they regard as waste material not desired by their masters, — “crumbs which fall from their masters’ tables,” — domestic servants would be much harder to secure than at present, and the chain-gangs of our country would be very largely increased. The employer in this ease, however, seems to have entertained a different view on the subject.

It is usually not the duty of reviewing courts to criticise the conduct of those who assume the role of prosecutor; and where the prosecution is in good faith and for the purpose of vindicating the law, such criticism would be inexcusable j but here the undisputed conduct of the prosecutor is so reprehensible that we can not refrain from placing upon it, our unmeasured condemnation. He caught this negro man in what, at the worst, was only a petty larceny. He took advantage of. this situation to drive .a hard bargain, and to' condemn him practically to a condition of peonage for 12 months, and actually held him in this bondage for one month. "With a threat of prosecution and of the infliction of severe punishment, he' forced the accused to make a written contract with him to labor without wages for 12 months. The prosecutor’s "offense against the rights of this man and the principles of justice furnishes no excuse whatever to the accused; but by contrast with the offense of the latter it is a much greater and more inexcusable infraction of the law. The writer of this opinion is tempted to say that under the facts of this case, illustrating the conduct of both the prosecutor and the accused, the latter seems to be “more sinned against than sinning,” and, although he may have been guilty, I am sure a verdict of not guilty would have' done no violence to the cause of justice, and would have satisfied the judgment and conscience of the community, without in the slightest degree imperiling the stability of the criminal statute. Judgment affirmed.