Davis v. State

Conviction of stealing hogs held unauthorized, because of variance in allegation and proof of description. (See dissent.)

DECIDED JULY 16, 1940. 1. "`While it is not essential, in an indictment for the larceny of an animal, to describe it by earmarks, yet if this be done, the description must be proved as laid. Crenshaw v. State, 64 Ga. 449. Consequently, where an indictment for the larceny of a hog alleged that it had a crop off the left ear, and a split in the right, and the prosecutor testified that the hog stolen from him had a crop off the right ear and a split in the left, there was a fatal variance; and this variance was not cured by the evidence of another witness who testified that the stolen hog had a crop off one ear and a split in the other, but did not state which ear had the split and which the crop.' Robertson v. State, 97 Ga. 206 (2) (22 S.E. 974), cited and approved in McLendon v. State, 121 Ga. 158 (48 S.E. 902). See also, in this connection, Wright v. State,52 Ga. App. 202 (182 S.E. 862)." Mosley v. State, 52 Ga. App. 650 (184 S.E. 364).

2. In this case the defendants were convicted of simple larceny (hog stealing). The indictment charged them with stealing two hogs which were described therein as follows: "one black and red spotted hog, weight about 180 pounds, with a slit and underbit in right ear; one solid black hog, with slit in right ear, and weighing about 150 pounds." On the trial the only description of the hogs was that given by the alleged owner, as follows: "There were two of those hogs, one weighing about 150 pounds, and the other one about 180 pounds; the largest one was a spotted hog, red and black spots on it, red color, and had a split in its ear; and the black one was solid black with a kind of split and underbit . . the red spotted hog had a split in its ear and underbit; and the black hog had just a split in its ear." It will be observed that the indictment charged that the earmarks of each hog were in the right ear, and that the proof merely showed that the marks were in "its ear." Therefore the description of the hogs was not proved as laid; and under the ruling stated in the preceding headnote there was a fatal variance between the allegata and probata. The conviction of the defendants was unauthorized, and the denial of a new trial was error.

Judgment reversed. MacIntyre, J., concurs.