Opinion
47628.
SUBMITTED NOVEMBER 7, 1972.
DECIDED NOVEMBER 28, 1972.
Theft by taking. Marion Superior Court. Before Judge Land.
Owens, Littlejohn, Gower Pugh, J. Walter Owens, for appellant.
E. Mullins Whisnant, District Attorney, for appellee.
1. The defendant was indicted and convicted of the offense of theft by taking of several hogs. The defendant then filed a motion for a new trial which was overruled and an appeal was filed.
Enumeration of error number 3 states: "The Superior Court of Marion County, Georgia, erred as a matter of law in failing to sustain a motion to quash Count 2 of the indictment for the reason that the hogs therein attempted to be described were not sufficiently described so as to identify the property alleged to have been taken and to apprise the defendant of an adequate and complete description thereof so that he could prepare his defense thereto." Count 2 of the indictment described the hogs as follows: "Two (2) hogs, red color, Duroc, weighing four hundred seventy-five pounds with `v' notch in ear, five (5) hogs white color, Landrace and four (4) hogs black and white color, Hampshire of the total weight of one thousand four hundred five (1,405) pounds, with `v' notch cut in ear of each, of the total value of Two Hundred Seventy Five and 08/100 ($275.08) dollars."
Under that which was held in Garrett v. State, 21 Ga. App. 801 ( 95 S.E. 301); Ellis v. State, 67 Ga. App. 821 ( 21 S.E.2d 316); Robertson v. State, 97 Ga. 206 ( 22 S.E. 974), the hogs were sufficiently described in the indictment.
2. Considering the evidence as a whole it was sufficient to support the verdict.
3. The remaining enumeration of error is without merit.
Judgment affirmed. Hall, P. J., and Pannell, J., concur.
SUBMITTED NOVEMBER 7, 1972 — DECIDED NOVEMBER 28, 1972.
The evidence as stated by appellant's attorney was that: Mr. Johnny Fred Pope testified for the State that he and Anthony Ansley and Sam Byrd were in the hog farm business under the trade name of A B P. The hogs were fed cooked garbage from Fort Benning, which caused them to have an odor of garbage and caused the hog hair to get oily looking and greasy. On the morning of March 15 he saw a hog in the loading chute that was not supposed to be there and vehicle tracks that came in from the north side of the farm backed up to the chute. Neither he nor any of his employees had loaded any hogs the previous day or early that morning. He found eleven hogs missing. He testified "Well, to describe each one that was missing, we couldn't tell exactly; only the two big red ones. We knew they were gone and there was five white ones gone and four Hampshires." The hogs came out of pen number 9. The missing hogs had a "v" mark like the vets put on them at the feeder pig sale, a "v" cut out of the ear. He called the sheriff who called Southern Foods in Columbus. He went to Southern Foods with the sheriff and a GBI man where he recognized the hogs, two big red ones, five white ones and four Hampshires listed. The two big red ones were the Durocs that were overweight that he had looked at on Saturday with Mr. Byrd. The white ones were Landrace and the Hampshire hogs were black and white. Their ears were marked with a "v" mark in the ear. He could smell slop in them and they were greasy. The hogs he looked at at Southern Foods were in fact his hogs without a doubt.
The witness testified on cross examination that he bought hundreds of hogs in the course of a year and each hog is not marked to identify it. In attempting to describe the two red hogs he guessed their weight to be over two hundred pounds each and he believed one was a barrow and one a gilt, but he wouldn't say for sure. He said the two red hogs had notches in their ears, he couldn't say positively whether there were notches in both ears or not or whether in the left or right ear, but he knew one ear was notched. The notch is one the underside of the ear. The witness testified "it was a Duroc unless there are other breeds of red hogs. It's possible that it could be something else." The five solid white Landraces were notched, but he did not know whether in the left or right ear and he couldn't tell whether they were male or female. They weighed around a hundred fifty each. The four hogs weighed about one hundred fifty each. The witness testified he did not identify these hogs by the "v" cut, but the cooked garbage fed to his hogs caused them to smell different and one way he knew they were his hogs was by the smell. He knew the defendant and knew the defendant had a few hogs. The value of the witness' hogs was about three hundred seventy-five ($375) dollars, and the weight of the eleven hogs would be in the neighborhood of about fourteen hundred and five pounds.
Mr. Harry L. Wages testified for the State. He is employed at Southern Foods as livestock buyer and bought eleven (11) hogs from Wiley Stinson on March 15, 1971. There were two red hogs and nine other hogs; part of them were white hogs and part of them were black and white. The witness identified the State's Exhibits 1 and 2. Exhibit 1 was for two hogs that weighed four hundred and seventy-five pounds and Exhibit 2 was for the nine smaller hogs that weighed fourteen hundred and five pounds. He paid two hundred seventy-five dollars and eight cents ($275.08). That morning the sheriff and the GBI agent came up and he showed them the hogs. They were the same hogs he bought from the defendant. He detected an odor of garbage and the hog hair had an oily look. He stopped payment on the check. The hogs were killed the following day.
Sheriff John McCorkle of Marion County testified he went to the A B P hog farm on March 15 and saw vehicle tracks, hog tracks and people tracks. He saw some glass by a pine tree and marks on a tree about four and half or five feet high and right below the marks he found glass and a tire track. He went to Southern Foods and Mr. Wages showed him the eleven hogs. There were two big red ones, five white ones and four black and white Hampshires. They had a "v" cut in their ears, smelled of slop odor and were greasy looking. Later that day he went to Wiley Stinson, Jr.'s house. A pick-up truck was found in his yard. Red hair, white hair and black hog hair was stuck in the wooden body of the truck. The odor in the truck he smelled was the slop odor he smelled at the hog farm before that day. Defendant was arrested. A picture of the left side of the truck showing a little window broken where it hit something was made. Where the glass was broken would be about the same distance where the skinned place was on the tree. Later that day Mr. Pope and Mr. Ansley went to Southern Foods and identified the hogs as theirs.
On cross examination the sheriff admitted that he didn't examine the hogs at Southern Foods and didn't know how many males or females there were or how many boars or sows or barrows, and that he saw the "v" cut, but couldn't say which ear it was in. The sheriff did not match up the shattered glass found with the truck. He confiscated the truck on the 15th of March and kept it at the courthouse and took a picture of it on the 24th of March. He did not take a photograph of the tree. When he saw the defendant's pig pens he saw red hogs and spotted hogs and all kinds of hogs.
GBI Agent John Collins testified that he saw the skinned tree and the hogs in the pen at Southern Foods. There were eleven hogs, two large red hogs, five white hogs and four black and white hogs.
On cross examination he stated he saw the hog pens at the defendant's house; that he saw hogs and pigs, too, but didn't count them, and a sow with some pigs. He made no tests of the broken glass to compare with the truck or of the tires as to the tread and tracks where the pine tree was, although he stated the marks on the tree appeared to be fresh.
The hog farm where he met the sheriff and saw the tracks where the hogs had been loaded was in Marion County, Georgia. He didn't see notches in the ears of the defendant's hogs. He saw notches in the ears of the hogs at Southern Foods, but doesn't know whether in the left or right ear or both ears.
The defendant, Wiley Stinson, Jr., was sworn and testified in his own behalf that he was married, living with his wife, had six kids and he had worked at Golden Foundry for ten years and that his father gave him the land for his house. He had raised hogs three years, had thirty-one now. The hogs he raised were red ones, white ones, some black and white spotted ones and some listed ones. The hogs he sold Southern Foods came from his own pens and were his own hogs he sold that morning. When the sheriff told him he was accused of taking hogs, he told the sheriff they were his hogs and if he didn't believe him, to go down to his pen and look at them, but the sheriff didn't go and Mr. Collins didn't go. The purpose of inviting the sheriff down to look at his hog pens was to show where he had pulled out that morning and the tracks. He gets his hogs by breeding his sows. At the time of the trial he had a black Poland China boar and sow and a red Duroc sow.
On cross examination by the district attorney, defendant admitted that he went to the A B P hog farm every Sunday with the boys from Fort Benning and helped them feed the hogs. He had worked at the new hog farm twice. He was there on Sunday, March 14, but just stayed around the office. He raised those hogs and still has the sow the two red hogs came from. The four Hampshire hogs came from a black sow bred by another man's boar, a Hampshire boar. He had three sows during the time these pigs were born. One was red, one was a black Poland China and the other one was red. He fed his hogs on bread from Colonial Bakery. Bread and water, after it sours doesn't have the same smell as garbage. He fed them slate peanuts, too. He had thirty-one hogs, some black and white and red ones at the time of the trial, three sows, some barrows and one boar. None of these have notches in their ears.
The witness identified State's Exhibit 3 as his truck. The glass was taken out to keep the hogs from being suffocated. It was taken out, not broken out, and put under the seat.
Sheriff John McCorkle testified in rebuttal that the bottom glass was gone on both sides of the truck. The left side had been broken. The right side pane was up under the seat of the truck. The frame on the left side was gone. The frame on the right hand side was not gone.
The appellee agreed that the facts stated by appellant's counsel were correct with the following additions: "Mr. Johnny Fred Pope testified, in addition to the facts set out by appellant, that the two red hogs were Duroc hogs; that 100 hogs were placed in lot 9, that one died and eleven were missing and that there were 88 hogs in the pen on Monday, the day the hogs were discovered missing; that one of the red hogs weighed 250 pounds and the other 230 pounds; that he had not weighed the white hogs previously but they weighed around 150 pounds each; that the four black hogs weighed around 150 pounds each."
"As to the testimony of the appellant, in addition to that quoted in his brief, he stated that he raised the five white hogs, that they came from a black Poland China sow and a black boar. [Emphasis supplied]. Appellant further admitted on cross examination that the sheriff did look at his hogs the following day."