Stokes v. State , 84 Ga. 258 ( 1890 )

Blandford, Justice.

The plaintiff" in error was found guilty of the offence of burglary; the bill of indictment charging that in the county of Coweta, on the 16th of January, 1889, he entered into the depot at Grantville in said county, the said depot being a place of business of the Atlanta & West Point Railroad Company, a corporation of this State, and the same being a house wherein valuable goods and wares were stored, and that he feloniously and burglariously did break and enter the same with intent then and there to steal therefrom. He made a motion for a new trial, which was overruled, and he excepted.

1. Besides the general grounds in the motion, it was assigned as error that the court permitted State’s counsel, over objection by counsel for the accused, to prove that the Atlanta & West Point Railroad Company was in possession of the goods stolen, and that said goods were taken from the depot of the Atlanta & West Point Railroad Company, the indictment containing no aliegation that any goods were stolen,- or that any larceny or felony was committed in the said depot. The indictment, in our opinion, substantially follows the statute. Code, §§4628, 4386.

The next assignment of error is, that- the court allowed the State to prove that the defendant was found in possession of certain hats and other articles, and then to prove that said articles were taken from the depot on the night of the alleged burglary, there being no allegation in the indictment that the same were taken or stolen. "What we have just-said as to the preceding ground applies also to this.

2. As to the 5th ground, it would make no difference to whom the goods really belonged; if they were in the railroad company’s depot, they were in the possession of the railroad company as bailee, and the breaking and entering of its house with intent to steal anything therein is a burglary according to the definition of our code.

3. In -the 6th ground it is alleged that the court erred in allowing the State to prove the larceny of certain goods, to show the intent with which the defendant broke and entered the house. We cannot see upon what ground this assignment of error can rest. If it is proved that he broke and entered the house, and took away certain articles therefrom with intent to steal them, it is quite manifest that the breaking and entering was with the intent to commit larceny.

4. The 7th ground may be disposed of by what has already been said.

5. The 8th ground assigns as error the charge of the court on the subject of confession, without specifying wherein the error consists. So we cannot consider this assignment.

• 6. The 9th ground is that the court erred in overruling the motion in arrest of judgment, on the ground stated in the motion. The bill of exceptions says nothing as to the motion in arrest of judgment; we find that only in the transcript of the record sent up by the clerk. It has been held by this court that the i-efusal to arrest a judgment cannot be made the ground of a motion for a new trial. Such refusal should be excepted to in the bill of exceptions. Watson v. The State, 64 Ga. 61. But if it had been so excepted to, we would hold that there is nothing in this ground of error. As already stated, the bill of indictment is sufficient under our code.

7. This disposes of all the assignments of error. "We think there is sufficient evidence to have authorized the verdict, and that the verdict is in accordance both with the law and the evidence. . Judgment affirmed.