Smith v. State , 185 Ga. 365 ( 1938 )

Bell, Justice,

dissenting. The question is whether a mere failure to prove the allegation as to the sex of the chickens alleged to have been stolen would constitute a fatal- variance and demand a new trial, “in that (1) the defendant could again be tried and convicted of the same offense under another indictment which differed in matters of essential description, or (2) that the defendant would thereby be deprived of information as to the charge against which he was required by the indictment to defend.” In considering both subdivisions of the question, effect must be given to the facts that the defendant in his statement admitted his presence at the time and place of the alleged theft, and that, aside from his contention that the prosecutor “threw a gun on him,” he merely denied that he had taken any chickens, as testified by the prosecutor.

1. In McLendon v. State, 121 Ga. 158 (supra), it was held: “In order to sustain a conviction of larceny, the evidence must make out the description of the stolen property as laid in the indictment or accusation, although such description may have been unnecessarily minute.” In the opinion it 1vas said: “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.” In the instant case the sex of the chickens was not an essential element of the offense, and might have been omitted from the description in the indictment, provided the property was otherwise sufficiently described. In Gully v. State, 116 Ga. 527 (supra), it was said: “To entitle the accused to plead successfully former acquittal the offenses charged in the two prosecutions must have been the same in law and in fact. . . If the prosecution under the second indictment involves the same transaction which was referred to in the former indictment, and it was or might have properly been the subject of investigation under that indictment, an acquittal or conviction under the former indictment would be a bar to a prosecution under the last indictment. . . If the two prosecutions really involve the same transaction, the fact that the offense charged in the second indictment is by name a different offense from that which is set forth in the first does not prevent a judgment under the first from being a bar to the second prosecution. Holt v. State [38 Ga. 187], supra. On the other hand, if the two offenses are nominally the same but are substantially different, a judgment in one will not be a bar to a prosecution in the other. Brown v. State, 85 Ga. 713 (3) [11 S. E. 831]. It has also been held that where a person has been put in jeopardy of a conviction of an offense which is a necessary element in and constitutes an essential part of another offense, such jeopardy is a bar to a subsequent prosecution for the latter offense, if founded upon the same act. . . In determining whether the two offenses are identical we must not look to the indictment alone or to the proof alone, but to both the proof and the indictment. If the evidence offered under the issue formed upon the special plea shows that no other transaction than that sought to be investigated under the second indictment could have properly been the subject of investigation under the first, then an acquittal under the first indictment would be a bar to a prosecution under the second, notwithstanding the fact that there could not have been a conviction under the first indictment, for the reason that the proof offered in support of it failed to establish allegations descriptive of the offense, ordinarily immaterial, but which the pleader had made material by averment.” Under the principles ruled in these decisions, if the defendant in the instant case should be again indicted for the offense of larceny arising out of the same transaction, “the accused could successfully defeat a prosecution under the second indictment by identifying the offense charged in that indictment with the offense which was or could have been made the subject of investigation under the first indictment” (Lock v. State, supra), the case being one in -which the State merely “failed to establish allegations descriptive of the offense, ordinarily immaterial but which the pleader had made material by averment.” Gully v. State, supra.

2. Under the facts of this case, the failure of the State to prove the allegation as to the sex of the chickens did not render the defendant’s conviction illegal or demand a new trial upon the ground that the defendant was deprived of information as to the charge against him “which he was required by the indictment to defend.” This could not be true in any case where there is a mere failure to prove an allegation of which it can only be said that it is “unnecessarily minute,” although in some circumstances, as in the case of McLendon v. State, supra; it might be held that the conviction was illegal because the State “failed to make out its case” or prove the case as laid. The question certified and the statement accompanying it affirmatively disclose that the defendant was not hurt by any failure to supply him with information as to the charge against which he was required to defend. He admitted his presence at the time and place of the alleged offense, and, so far as here material, merely denied “that he had any chickens,” as claimed by the prosecutor. If he had made no statement whatever, it might be that he should have been acquitted because of the failure of the State to prove the offense as charged in the indictment; but in view of the sole and exclusive issue developed upon the trial, the omission to prove the “unnecessarily minute” descriptive allegation did not constitute a fatal variance and was. harmless. For the reasons stated the writer is of the opinion that the questions certified by the Court of Appeals should be answered in the negative, and not in the affirmative as held by the majority. The views herein expressed are deemed not to be in conflict with any of the decisions cited in the majority opinion or with any other decision by this court.