Opinion
35635.
DECIDED MAY 6, 1955.
Cattle stealing. Before Judge McClure. Chattooga Superior Court. October 13, 1954.
Bobby Lee Cook, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
1. The court did not err in denying the motion for a new trial as to the general grounds.
2. The special ground has no merit for the reasons given in the opinion.
DECIDED MAY 6, 1955.
Chesley Sewell (whom we shall call the defendant), was convicted of cattle stealing. He filed his motion for a new trial on the general grounds, and thereafter added two special grounds. The court denied the motion, and on this judgment he assigns error. Special ground 1 is, as argued by special ground 2, specifically abandoned. As to the general grounds there is a sharp conflict between counsel for the defendant and counsel for the State regarding whether or not the allegata and probata conflict to such an extent that the case should be reversed. This being true, we deem it advisable to give the evidence somewhat in detail.
Leroy Massey testified as follows: "Yes, I missed one, it was a white face heifer that weighed about four hundred pounds. The color of that heifer was red and white faced. It had hoofs like all cows. I don't know how to describe a cow's hoof, just a regular cow hoof. . . Matthew Hudgins lived down there on this place, and we was working down there on Friday morning, and that day at dinner it started to raining and we quit work, and just before we quit, we was working in the pasture and the cows all came through the pasture where we were at, and I seen this calf then. This calf was about six months old, or seven. I raised the calf. It was a heifer calf. I saw this calf that Friday, just about dinner time, and I didn't go back down to this place until sometime Saturday afternoon. When I went down there I saw some foot tracks all around the barn, there was mud there, we had just plowed around the barn; these tracks were all around the barn, and from those tracks then I saw where the calf had been killed on the side of the road, there was blood there by the side of the road. As to where that blood was at with reference to the pasture; well, the barn was sitting right in the edge of the pasture, and the blood was just about twenty or twenty-five feet from the barn. No sir, I never did see that calf again. That pasture is in Chattooga County, and the blood was in Chattooga County. . . When a red and white faced calf is wet as to how it would look; well, it could have been darker in the dark. As to whether or not it couldn't have been black, but is still red; well, it is still red, but it could look black. It looks black in the dark, if it is raining it would. I don't know how it looked to these fellows that night. I didn't see them steal this cow. I don't know whether they stole a red cow, or a black cow. I don't know whether they stole a red cow or a brown cow, I just know that I missed a white faced cow. I testified that I found some blood on the road. That was about twenty-five feet from the barn, right on the side of the road. There was a spot of blood there as big around there; about as big as a wash tub where it was stained. I said that I missed a heifer. It was about six months old, and weighed about four hundred pounds, and it was red with a white face. As to what kind of feet it had; well, it was red footed, red hoof footed. I did not miss any other calf beside that calf. I never did miss any other cow besides that one. As to whether or not I remember what the weather was like that night; well, it had been raining along that night, raining and drizzling. I have seen a red cow when it was wet; it makes it appear to look darker, blacker. Yes, if a cow had been out in the pasture that night it would have been wet. . . As to whether or not when a red cow gets wet it doesn't look like, or make it turn black; well, it will make it a little darker. As to whether or not it won't make him turn black, whether or not rain just doesn't affect animals that way; well, it will make them look darker. As to whether or not it doesn't make them look black; well, I might call it black. As to whether or not I don't know what the weather was when Frank Mostella stole this cow, whether it was raining then in the pasture or not; I know that it had rained that night. As to whether or not I don't know whether it was raining in the pasture at twelve-thirty that night; well, I know that it was raining around twelve-thirty. . . As to whether or not I don't know whose cow they got of my own knowledge, I just know that I had a cow missing; well, I know that the tracks showed down in my pasture here I had plowed up the ground down there, and then the tracks down there where they drove the calf up, you can see out of the shed where they got hold of the calf and brought it out of the shed and killed it right there on the side of the road, I know that."
Frank Mostella testified with reference to the identity of the calf: "As to who all went over there to Matthew's house with me and Matthew; well, me, Chesley Sewell, Eva Shepherd and Matthew Hudgins, there was four of us. . . After we got out of it we went down to Mr. Leroy Massey's barn, where we got the calf at. The four of us went down there looking for a calf, me and Chesley Sewell, Matthew Hudgins and Buster Crider. We found the calf; it was a black looking calf with white looking face. . . After we roped it I said that we took it up to the road. After we got it up to the road Matthew hit it in the head with an axe and I cut its throat. After I cut his throat we put him in Matthew Hudgins' car. . . All five of us helped take it out of the car, me, Buster Crider, Matthew Hudgins, Chesley Sewell and Eva Shepherd. All four of the men skinned the calf, me and Chestley Sewell, Buster Crider and Matthew. Chesley [the defendant] helped us skin it, he was right there. It was a black looking cow that we got over there. I am not color blind. It wasn't red, it was black, black looking with a white face. It didn't have any red on it. That was the only one we got."
Matthew Hudgins, as to the identity of the calf, testified as follows: "It was in the night time, about twelve-thirty or one o'clock. . . After we got the calf there in the barn lot we brought it out and killed it and put it in the car and went and dressed it. . . As to where we was at when we cut his throat; well, right there on the side of the road from the barn. That is where we killed it at. As to what kind of a cow I did get; well, I couldn't tell you that myself, because I wasn't looking. It was a dark brown cow. As to whether or not it wasn't black; well, I thought it was dark brown in the dark. As to whether or not I could have called it black in the dark; well, I guess you could have called it anything, I guess, but I am telling you what I think. I guess the face of the cow was the same color as the other. I wasn't sure; it wasn't a white faced cow as I knows of. I have seen white faced cows. When we got the cow over in the pasture we brought it back to the road and killed it. I said that I hit it in the head with an axe and Frank Mostella cuts its throat with his knife."
In our opinion, Sloan v. State, 68 Ga. App. 92 (1, 2) ( 22 S.E.2d 333), is applicable in several respects to the case here involved. Those headnotes read: "1. In a trial on an accusation for simple larceny, charging theft of motor vehicle tires, the description of the property involved, including the serial numbers of the tires, was sufficiently proved where the evidence detailed the description as alleged save the serial numbers, and further detailed that the tires lost and recovered were the same tires as the ones described `in counts 1 and 2 of this accusation.'
"2. There are two reasons why a charge of simple larceny should be specific in its allegations of the description of the property involved and why the proof should be in substantial compliance therewith: (1) in order that the defendant may prepare his defense, and (2) that he may not be tried a second time for the identical larceny."
Nightingale v. State, 94 Ga. 395 (2) ( 21 S.E. 221) holds: "If on a trial for larceny the jury have no reasonable doubt as to the identity of the animal alleged to have been stolen or as to any other essential fact involved in the commission of the offence, it will be no cause for acquittal that they entertain a reasonable doubt as to the truth or accuracy of some of the descriptive terms applied in the indictment to the animal. Although a needlessly minute or comprehensive description must be proved as alleged, the superfluous elements need not be established with the same degree of certainty as is requisite touching the essentials of the case." That case was reversed, but on a different ground from that involved in the instant case. See also Timmons v. State, 14 Ga. App. 802 ( 82 S.E. 378), in which this court said: "1. While (as is frequently the case in such matters) the different witnesses disagreed in describing the color of the cow alleged to have been stolen, there was some evidence, descriptive of the color of the cow, which was substantially conformable to the description in the indictment; and since the comparative weight to be attached to the testimony of the different witnesses is a matter addressed peculiarly and solely to the jury, it cannot be said that there was a fatal variance between the allegata and probata." See also Graham v. State, 16 Ga. App. 221, 225 ( 84 S.E. 981), wherein this court discussed the description of a "blue and white spotted cow" and a "black and white spotted cow." In our opinion the instant case is practically identical with that case, since the testimony related to a "red animal with a white face," and another witness testified that the animal was "a black one with a white looking face and brown." Counsel for the defendant call our attention to the following cases: Mosley v. State, 52 Ga. App. 650 (1) ( 184 S.E. 364); Crenshaw v. State, 64 Ga. 449; Johnson v. State, 73 Ga. 128; and Hardy v. State, 112 Ga. 18 ( 37 S.E. 95). We have read these cases carefully, and find that the facts and the opinions in those cases show no reason sufficient to support the contentions of the defendant to the effect that the proof in the instant case did not sustain the allegations in the indictment here involved.
2. Special ground 1 complains because, when one of the witnesses for the State was on the stand, he was asked by the solicitor-general if he (Mostella) had not pleaded guilty and if a sentence for the same transaction had not been imposed upon him. Counsel for the defendant interposed an objection to this testimony, contending that it was illegal and prejudicial to the defendant, and made a motion for a mistrial. At this point the court had the jury retired. Counsel and the court discussed the matter, after which the jury were recalled. The court then said: "I am going to overrule your motion. I will make an explanation to the jury. Gentlemen of the jury, I would like to explain this to you. Anything that might have occurred in the way of any sentence or punishment, you will disregard. The statement of the witness here what he stated that he received, or what he has served. Of course, if it is proper to introduce it, the best form of evidence would be any indictment and the sentence, it is a matter of record. I will instruct you to disregard that, and remove that from your mind. That is not involved in this case. Just where defense counsel might want to bring at certain things on the grounds of credibility, the court does allow like that, but it was improper for the prosecution to ask what he had suffered, and anything about his sentence, and the court has corrected the solicitor on that question. It was improper to ask those questions, and the solicitor has been instructed on it. You will disregard that and let that have nothing to do with your minds in this case." It must be kept in mind that the issue here concerned a witness on the stand, a coconspirator. We are not quite sure that the testimony along the line testified to by this witness was not competent evidence. Counsel for the defendant cites 3 Am.Jur. 583, § 1029, wherein it is stated: "It is obvious from what has been heretofore said that the line between admitted evidence that is harmless and admitted evidence which is prejudicial is a very shadowy one. Some general principles for the determination of prejudice have been given. We come now to review the cases of admission held erroneous. The most general test of prejudice in the admission of evidence is the probability that the evidence thus erroneously admitted influenced the verdict by arousing the sympathy or passions of the jury, or resulted in a miscarriage of justice, or a violation of a constitutional or statutory right." We see nothing in this excerpt which will authorize a reversal of this case under the record involved here.
Our attention is called to Sharpe v. State, 91 Ga. App. 147 ( 85 S.E.2d 95). The facts in that case are not analogous to those in the instant case. In that case the attack was on the defendant's character and not regarding the witness who was testifying as to his being connected with the same case for which the defendant was on trial.
In support of the State's contention, see May v. State, 24 Ga. App. 379 (3) ( 100 S.E. 797). See also Porch v. State, 207 Ga. 645 (2b) ( 63 S.E.2d 902), and citations therein. This special ground is without merit.
Special ground 2 is expressly abandoned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.