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South v. State

Court of Appeals of Georgia
Feb 16, 1951
63 S.E.2d 614 (Ga. Ct. App. 1951)

Opinion

33350.

DECIDED FEBRUARY 16, 1951.

Burglary; from Douglas Superior Court — Judge Mundy. September 27, 1950.

Emmett Smith, D. S. Strickland, for plaintiff in error.

Hal C. Hutchens, Solicitor-General, contra.


1. Where, as here, the ownership of a storehouse and goods is alleged to be in one person who has the exclusive right of possession and control, and the proof shows that another, a partner, has an interest in the profits of the goods, but the other person does not have the right of possession and control, a verdict finding the defendant guilty of larceny of such goods will not be set aside for the reason that the ownership of the goods was not alleged to be in the partnership.

2. We find no reversible error in any of the special grounds.

DECIDED FEBRUARY 16, 1951.


The defendant, Junior South, was tried on a special presentment for burglary, and convicted of larceny from the house. He filed an amended motion for a new trial, which was overruled. On this judgment he assigns error here. The jury were authorized to find from the evidence that the defendant and J. W. Carr and Buddy Cason entered a storehouse and took therefrom approximately $300 worth of merchandise. They divided the loot three ways, each of the alleged participants taking approximately one-third. The goods thus alleged taken from the storehouse were alleged to belong to J. C. Pope. The evidence developed the fact that J. C. Pope was in active charge of the store, did all the buying, and otherwise had exclusive management of the business, although his son-in-law, R. T. Highnote, owned an interest in the business. Highnote worked in Atlanta but did do some work as a clerk part time. The daughter of J. C. Pope, the wife of Highnote, was employed in the store as a clerk by her father. She owned no interest in the store. One Durrell was also employed as a clerk. He had no interest in the store. He was a mere employee there. At the time of the burglary, J. C. Pope and Highnote, his son-in-law, were temporarily in the hospital in Atlanta. During the temporary period of confinement of J. C. Pope in the hospital the storehouse was burglarized about 12 at night by the three men, Carr, Cason, and the defendant, Junior South. At the time of the trial of the defendant, Carr and Cason were doing time in the public-works camp, for the same offense. They both testified at the trial that Junior South was present with them at the time of the burglary and went in the store with them when they removed the goods and when they divided the goods, and that Junior South sold his portion of the goods to a Mr. Carroll, who operated a store. The sheriff, the F. B. I. agent, and others, testified that the defendant, Junior South, were all present when the defendant, Carr and Cason admitted their participation in the burglary and also that of the defendant and that the defendant in all the conversations he had with them never denied his participation in the burglary.

The sheriff testified in this connection ". . . he [meaning the defendant Junior South] never made a statement to me himself with reference to this transaction. No more than they [meaning Junior South, Carr and Cason], just discussed it among themselves and we [meaning the sheriff, Junior South, Carr and Cason] talked about it. Not any of the three of them denied it. I asked them all if they were together, and they said they were. . . In reference to the conversation between them I did not ever hear Junior South make any statement about he didn't go in the store. He never did deny it. He never did say anything about he didn't go in the store. They all three told me they went in. The defendant [meaning South] stated to me that he did go in the store."


The general grounds and special ground 6 attack the verdict on the ground that the presentment alleged that the storehouse and the merchandise contained therein belonged to J. C. Pope, whereas the evidence showed that Highnote had an interest in the merchandise. In this connection an excerpt from the charge of the court is attacked as erroneous and not a sound abstract principle of law. In this connection we think it clear that the evidence shows that J. C. Pope owned the storehouse and was in exclusive possession and control of the stock of merchandise, although at the time he was temporarily in the hospital in Atlanta and at the time the burglary was committed his agents, Mrs. Highnote and Durrell, were in charge of the property as agents during the hours the store was open for the transaction of business. It is contended that, the ownership being alleged to be in Pope, the evidence was at fatal variance with the allegations, since the evidence showed that Highnote owned only an interest in the profits of the business. We do not think so. In this connection see Thomas v. State, 27 Ga. App. 38 (2) ( 107 S.E. 418); also Henley v. State, 59 Ga. App. 595 (2) ( 2 S.E.2d 139). See also, in this connection, Temple v. State, 53 Ga. App. 671 ( 187 S.E. 138). While not altogether in point, we think that the case of Hall v. State, 7 Ga. App. 115 ( 66 S.E. 390), throws considerable light on the case at bar. Counsel for the defendant cites Eubank v. State, 105 Ga. 612, 614 ( 31 S.E. 741), and cites and discusses a number of other cases relied on by the State, among which are Lee v. State, 62 Ga. App. 556 ( 8 S.E.2d 706); Robinson v. State, 1 Ga. 563, Kidd v. State, 101 Ga. 528 ( 28 S.E. 990), Berry v. State, 92 Ga. 47 ( 17 S.E. 1006), and Hall v. State, supra. A careful reading of those cases and the facts as compared to the facts in the instant case, to our mind, do not require a reversal of the judgment in the instant case. We think the decision in Goode v. State, 70 Ga. 752, is clearly controlling in the instant case. It is practically on all fours. In that case, among other things, the court said "the place of the larceny was stated with sufficient certainty to enable the jury easily to understand, with the aid of proof, the house indicated; and, though the goods alleged to belong to the prosecutor in fact belonged to a firm of which he was a member, he had a right to their custody. Even if the indictment did not fully and accurately describe these circumstances, it would not prevent the defendant from pleading former acquittal." So that principle of law, without doubt, seems to apply and be applicable to the facts in the instant case. If, under the indictment and facts in the instant case, the defendant could not be again tried for the offense charged because the ownership of the goods was alleged to be in a member of the partnership or firm, where such member had "a right to the custody of the goods", the verdict in the instant case would not be an illegal one. It cannot be seriously doubted that the evidence in this case shows that J. C. Pope had the right of possession and the right of custody of the goods stolen. And all the evidence shows that Mrs. Highnote and Durrell were merely his clerks or agents holding possession for him, J. C. Pope.

Special ground 1 complains of the court's charge and the failure of the court to sufficiently charge with reference to incriminating admissions and confessions, it being contended that the court did not sufficiently distinguish between incriminating admissions and confessions. After having read the entire charge and evidence, we find no error in the contentions of special ground 1.

Special ground 2 attacks the charge with reference to corroboration as to the defendant's confession.

Special ground 3 complains of the court's charge with reference to an accomplice.

Special ground 4 assigns error because the court did not sufficiently give the jury in charge the defendant's contentions.

Special ground 5 assigns error upon the charge of the court with reference to conspirators.

When we view the charge as a whole and the evidence involved, we find no error in any of the special grounds.

Counsel for the defendant insists upon, but does not argue, the first, second, third and fifth of the special grounds. We have dealt with special ground 6 in connection with the general grounds.

The court did not err in overruling a motion for a new trial as amended.

Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.


Summaries of

South v. State

Court of Appeals of Georgia
Feb 16, 1951
63 S.E.2d 614 (Ga. Ct. App. 1951)
Case details for

South v. State

Case Details

Full title:SOUTH v. THE STATE

Court:Court of Appeals of Georgia

Date published: Feb 16, 1951

Citations

63 S.E.2d 614 (Ga. Ct. App. 1951)
63 S.E.2d 614