McLendon v. State , 121 Ga. 158 ( 1904 )

Simmons, C. J.

Upon an accusation charging larceny from the house, McLendon was tried in the city court of LaGrange, before the judge without the intervention of a jury. The judge found the accused guilty, and the latter moved for a new trial upon the grounds that the judgment was contrary to law and the evidence and without evidence to support it.' The property alleged to have been stolen was described in the accusation as “ one box of Sweep Stakes tobacco, five lbs. Dukes mixture smoking tobacco, and one 19-lb. sack Capitola flour.” The accusation also alleged the value and ownership of these goods. The evidence showed the theft of some flour and tobacco, but there was absolutely nothing to show that the 'goods were of the brands or kinds set out in the accusation. We think it clear that the State failed to make out its case. It is essential to an indictment or accusation for larceny that the stolen goods be described with certainty. It may be that the accusation in the present case described them with unnecessary particularity, but, this having been done, the case should have been proved as laid. “ If a necessary allegation is made unnecessarily minute in description, the proof must satisfy the descriptive as well as main part, since the one is essential to the identity of the other.” 1 Bish. New Crim. Proc. §485. See also Clark, Crim. Proc. 182; Watson v. State, 64 Ga. 61; Robertson v. State, 97 Ga. 206; Johnson v. State, 119 Ga. 257. Were the rule otherwise, one could be convicted upon the same evidence under several indictments which differed in matters of essential description. Jeopardy under one such indictment is no bar to a prosecution under another, and more than one conviction for the same offense is prevented by the rule above laid down. Another reason for the rule is that the accused is entitled to information as to the charge against which he must defend; and the essential averments of the indictment must be proved ,as laid, in order to show the identity of the offense proved with that charged. For these reasons we think that the evidence in the present case, even if in other respects sufficient, did not make out the case against the accused. The verdict should have been set aside and a new trial granted. Judgment reversed.

All the Justices concur.