Gearin v. State

20 Citing cases

  1. D. P. v. State

    129 Ga. App. 680 (Ga. Ct. App. 1973)   Cited 23 times
    Holding a juvenile may not be adjudicated delinquent for an offense which is neither the crime charged in the juvenile petition nor a lesser included offense of the charge

    Nowhere is there an allegation of receiving, disposing or retaining of stolen property." Gearin v. State, 127 Ga. App. 811, 812 ( 195 S.E.2d 211). We must now address ourselves to the resolution of two questions: (1) Since Code Ann. ยง 24A-1603 requires only "a statement that it is in the best interest of the child and the public that the proceedings be brought and, if delinquency or unruly conduct is alleged, that the child is in need of supervision, treatment or rehabilitation, as the case may be.", is the allegation that the juvenile committed burglary merely surplusage? (2) Must the petition set forth with specificity the alleged violation of law either in the language of the particular code, or so plainly that the nature of the offense charged may be easily understood by the child and his parents or guardian? Question (1) is answered in the negative.

  2. McFall v. State

    235 Ga. 105 (Ga. 1975)   Cited 14 times

    " Goldin v. State, 104 Ga. 549, 550 ( 30 S.E. 749). See also, Gearin v. State, 127 Ga. App. 811 ( 195 S.E.2d 211). However, under the circumstances of this case, I do not see how statutory rape can be considered a lesser included offense of forcible rape.

  3. McCorquodale v. State

    233 Ga. 369 (Ga. 1974)   Cited 92 times

    In the absence of a request to charge or an objection to the court's omission to charge the jury on voluntariness of the confession, the trial court did not err. Although there is no burden on defense counsel in a criminal case to object to an instruction as a condition precedent to enumerating it as error, we note here that counsel in answer to an inquiry by the court affirmatively stated that his only objection related to the charge on voluntary manslaughter. See Gearin v. State, 127 Ga. App. 811, 813 ( 195 S.E.2d 211) and Thompkins v. State, 126 Ga. App. 683, 684 ( 191 S.E.2d 555). We also note that there was ample evidence to support the conviction without the confession, including the testimony of two eyewitnesses to the crime.

  4. Holloman v. State

    310 S.E.2d 734 (Ga. Ct. App. 1983)   Cited 5 times

    Nowhere is there an allegation of receiving, disposing or retaining of stolen property." Gearin v. State, 127 Ga. App. 811, 812 ( 195 S.E.2d 211) (1973). "`"It is an elementary principle of criminal procedure that no person can be convicted of any offense not charged in the indictment.

  5. Dickson v. State

    167 Ga. App. 685 (Ga. Ct. App. 1983)   Cited 7 times

    It follows that the trial court did not err in refusing the subject request to charge. See Gearin v. State, 127 Ga. App. 811 (1) ( 195 S.E.2d 211) (1973); Wells v. State, 127 Ga. App. 109 ( 192 S.E.2d 567) (1972). Judgment affirmed. Quillian, P. J., and Sognier, J., concur.

  6. Jackson v. State

    297 S.E.2d 502 (Ga. Ct. App. 1982)   Cited 1 times

    "To authorize a charge on a lesser included offense `it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.' Gearin v. State, 127 Ga. App. 811 (1) ( 195 S.E.2d 211)." Kinney v. State, 155 Ga. App. 95, 96 ( 270 S.E.2d 209) (1980).

  7. Johnson v. State

    296 S.E.2d 202 (Ga. Ct. App. 1982)   Cited 3 times

    Theft by receiving stolen property is not, under Georgia law, a lesser offense included within the offense of burglary. Gearin v. State, 127 Ga. App. 811, 812 ( 195 S.E.2d 211) (1973); see McRoy v. State, 131 Ga. App. 307, 308 ( 205 S.E.2d 445) (1974). Stonaker, supra, therefore does not apply.

  8. Porter v. State

    295 S.E.2d 179 (Ga. Ct. App. 1982)   Cited 10 times
    In Porter v. State, 163 Ga. App. 511 (2) (295 S.E.2d 179) (1982), this court addressed this issue: "Where a motion for mistrial is made on the ground of inadmissible evidence illegally sought to be placed before the jury, the corrective measure to be taken by the trial court is largely a matter of discretion and where timely and proper corrective measures are taken and the evidence [is] innocuous or equivocal, normally this court will find no abuse of discretion in denying a motion for mistrial. [Cit.

    To warrant conviction of a lesser offense on an indictment or information charging a greater offense, it is essential that the allegations describing the greater offense contain all the essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser. Gearin v. State 127 Ga. App. 811 (1) ( 195 S.E.2d 211). Conspicuously missing from the greater (or related) offense of criminal damage to property is any necessity of proving the governmental nature of ownership of the damaged property. The nature of the ownership in criminal damages to property as heretofore noted is purely incidental, so long as to does not belong to the defendant.

  9. Dalton v. State

    162 Ga. App. 7 (Ga. Ct. App. 1982)   Cited 3 times

    An accused may be convicted of a crime included in a crime charged in the indictment when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or the lesser included crime is different from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. See Code Ann. ยง 26-505 (Ga. L. 1968, pp. 1249, 1267); Tuggle v. State, 145 Ga. App. 603 (1) ( 244 S.E.2d 131); Gearin v. State, 127 Ga. App. 811 (1) ( 195 S.E.2d 211); Allen v. State, 233 Ga. 200, 203 (3) ( 210 S.E.2d 680); Krist v. State, 227 Ga. 85, 89 ( 179 S.E.2d 56); State v. Estevez, 232 Ga. 316, 319-320 (1) ( 206 S.E.2d 475); Zilinmon v. State, 234 Ga. 535, 539 (8) ( 216 S.E.2d 830); Williams v. State, 238 Ga. 244, 246 (7) ( 232 S.E.2d 238). The statute in question with reference to controlled substances cites in detail the various prohibited acts stating at the very beginning that it is unlawful for any person to possess or have under his control any controlled substance.

  10. Kinney v. State

    270 S.E.2d 209 (Ga. Ct. App. 1980)   Cited 20 times
    In Kinney, supra, this Court found sufficient evidence to affirm a burglary with intent to rape conviction. 155 Ga. App. at 96.

    4. The final enumeration claims that the trial court erred in failing to give a charge on simple battery as a lesser included offense. To authorize a charge on a lesser included offense "it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser," Gearin v. State, 127 Ga. App. 811 (1) ( 195 S.E.2d 211). Although "[a]n assault, or assault and battery, is necessarily involved in every case of rape" ( Sims v. State, 203 Ga. 668, 670 ( 47 S.E.2d 862)), a battery is not a lesser offense in this case of burglary with intent to commit rape as an unlawful touching is not necessarily included within the language of the indictment. Even assuming that battery was a lesser offense, the contention is without merit as defendant did not make the request to charge in writing.