Opinion
34189.
DECIDED SEPTEMBER 17, 1952.
Larceny (cattle); from Berrien Superior Court — Judge Smith. May 28, 1952.
H. W. Nelson, Elsie Higgs Griner, for plaintiff in error.
Edward Parrish, Solicitor-General, contra.
Where, upon the trial of four of five defendants charged with the offense of cattle stealing, it is nowhere admitted or conceded by any of the defendants that the cows stolen were those described in the indictment: "one red and white spotted cow, about 3 years old, weight about 500 lbs.; one black cow about 4 years old, weight about 450 lbs.; one brindle cow, about 3 years old, weight about 400 lbs.; one red cow about 4 years old, weight about 450 lbs.; of the value $350, . ."; and the evidence goes no further than to describe some of the cows as being of the same color as those described in the indictment, but no one of the cows is described as to color, age, and weight with the same particularity as the cows enumerated and described in the indictment, there is a fatal variance between the allegata and probata, rendering the verdict unauthorized and necessitating the grant of a new trial. Hardy v. State, 112 Ga. 18 ( 37 S.E. 95); Smith v. State, 185 Ga. 365 ( 195 S.E. 144); Paulk v. State, 5 Ga. App. 567, 573 ( 63 S.E. 659); Wiley v. State, 74 Ga. 840; Crenshaw v. State, 64 Ga. 449; Berry v. State, 92 Ga. 47 ( 17 S.E. 1006); McLendon v. State, 121 Ga. 158 ( 48 S.E. 902); Hunter v. State, 80 Ga. App. 432 ( 56 S.E.2d 199). The trial court erred in overruling the motion for a new trial, based solely upon the general grounds.
Judgment reversed. Gardner, P.J., and Townsend, J., concur.