Smith v. State

195 S.E. 323, 57 Ga. App. 358, 1938 Ga. App. LEXIS 599

Opinion

6uerry, J.

The indictment in the present case charged the defendant with the larceny of “1 white plymouth rock pullet, . . and 1 dark-barred plymouth rock pullet.” On the trial the prosecutor testified that “one of the chickens was a dominecker [dominique?], and the other one was a white-barred rock.” Upon certification to the Supreme Court, that court ruled in answer to the question propounded that “The charge of larceny of ‘1 white ply-mouth rock pullet, . . and 1 dark-barred plymouth rock pullet,’ is not supported by proof of larceny of two chickens, one of them being a cdominecker’ and the other ca white-barred rock,’ where there was no proof as to sex. . . In the circumstances there was such variance between the allegations and proof as to render the conviction illegal and require a new trial.” Smith v. State, 185 Ga. 365 (195 S. E. 144). Therefore, the judgment of this court is that the judge erred in overruling the motion for new trial.

Judgment reversed.

Broyles, C. J., and MacIntyre, J., concur.