Pippin v. State

196 S.E.2d 664, 128 Ga. App. 355, 1973 Ga. App. LEXIS 1479

• Court: Court of Appeals of Georgia
• Decided: March 1, 1973
• Docket: 47377
• Status: Published

Opinions

Deen, Judge.

1. The indictment alleged that the defendant took "one set of twelve golf clubs; one signature adding machine, and various items of men’s clothing, same being the property of C. H. Huckabee, of a value of $500.” We agree with the defendant that the allegation "various items of men’s clothing” is not a sufficient description of the clothing, and such an allegation should be stricken on a special demurrer that zeroes in on this defect. These demurrers, however, attacked the description of all items generally, and certainly the adding machine, being described by its trade name and as the property of a named person, was sufficient. See Tucker v. State, 112 Ga. App. 622 (1) (145 SE2d 751); Lindsey v. State, 9 Ga. App. 299 (70 SE 1114). Kyler v. State, 94 Ga. App. 321 (3) (94 SE2d 429) relates to a theft of money, allegations as to which are subject to special rules. The allegation: "one set of 12 golf clubs” might well come within the inhibition of Pharr v. State, 44 Ga. App. 363 (161 SE 643), where it is pointed out that descriptions of this type are generally insufficient unless the transaction itself is further particularized and identified as a component of a compound larceny. This would have been very simple in the present case, since the proof shows that all of the items alleged to have been taken were located in an automobile belonging to the prosecutor and that the defendants were apprehended by the police while in the act of transferring them to another car. The allegation as to the aggregate value of the several items alleged to have been stolen was sufficient without placing a value on each individually. Bone v. State, 120 Ga. 866 (48 SE 356). Under the circumstances, no reversible error is shown in overruling the demurrers to the indictment.

2. The defendant’s statement, corroborated by the testimony of two co-confederates who admitted participation in the larceny, was to the effect that they and another indictee drove to a Holiday Inn to allow the defendant to look up a man he was supposed to meet; that the defendant left the others in the car and went upstairs in the motel looking for this person; that while he was gone the others discovered that an automobile parked near them was unlocked and contained clothing and other property, and they thereupon set out to transfer it to their vehicle, and that the police car arrived and intercepted them before the defendant returned to the scene. If this statement and testimony were true Pippin was absent from the scene at the time the intent was formed and carried out and, for lack of opportunity, could not have been guilty of this particular larceny. This contention being Pippin’s sole defense and being supported by the sworn testimony of two witnesses it was error not to instruct the jury on the law of alibi. Hogan v. State, 221 Ga. 9 (3) (142 SE2d 778).

It has been suggested that the evidence in this case is sufficient to support a finding that a conspiracy existed between the defendant and others in the car to commit a larceny from the Huckabee automobile. There was evidence by state’s witnesses that the defendant was present and involved in removing the personal property, which, if believed by the jury, made the defendant guilty of larceny without regard to any conspiracy theory. However, two sworn witnesses for the defense as well as the defendant in his unsworn statement testified that the defendant was not only absent during the commission of the crime, but had left the vicinity prior to the discovery of the unlocked automobile and the inception of the idea of looting it, in which case he could not have been a party to the crime under Code Ann. § 26-802. Nor is there any evidence that there was a general prior conspiracy to loot, since the only evidence is that the four men got together earlier in the evening and went to Ship A’Hoy and possibly other places for drinks, and then went to the Holiday Inn to take the defendant to see a fellow who was staying at the motel. Such conduct might be sufficient to raise certain suspicions after the fact, but it is not enough to establish, even prima facie, a prior conspiracy to commit theft. An instruction on alibi should have been included in the charge.

Judgment reversed and remanded for a new trial.

Bell, C. J., Quillian, Evans and Clark, JJ., concur. Hall, P. J., Eberhardt, P. J., Pannell and Stolz, JJ., dissent. Argued September 13, 1972 Decided March 1, 1973. Edwin A. Carlisle, for appellant. George A. Horkan, Jr., District Attorney, for appellee.