Barlow vs. The State of Georgia

Supreme Court of Georgia1886-10-19

77 Ga. 448

Summary · law.co

Holding. The trial court properly allowed the amendment to the accusation after jury selection because the defendant's prior agreement to amend the charge encompassed the right to make a valid accusation, and the trial court correctly instructed the jury that a conviction for larceny from a house was permissible even if the evidence established burglary. The judgment is affirmed.

Barlow was charged in city court with larceny from a house for stealing chickens. The prosecutor initially brought a simple larceny charge but, with the defendant's counsel's agreement stated in open court, amended the accusation to charge larceny from a house. After the jury was sworn, the prosecutor noticed the amended charge incorrectly identified the stolen property as belonging to the defendant rather than the actual owner, Cunningham. The prosecutor sought a second amendment to correct this defect. The trial court granted the amendment over the defendant's objection.

The defendant appealed on three grounds. First, he argued the second amendment after jury selection was improper. The appellate court rejected this, finding that the defendant's earlier agreement to amend the charge encompassed the solicitor's right to create a valid and complete accusation, and that correcting the property owner's name fulfilled that agreed-upon amendment. Second, the defendant challenged the trial court's instruction that a conviction for larceny from a house was proper even if the evidence also established burglary. The court upheld this instruction, explaining that larceny from a house and burglary are closely related offenses that differ primarily in the type of dwelling, and when burglary involves breaking and entering and stealing, it encompasses the lesser offense of larceny from a house. Third, the defendant contended insufficient evidence supported the verdict, which the court found wholly without merit.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an amendment to a criminal accusation may be made after jury selection based on a prior agreement to amend
Whether a conviction for larceny from a house is proper when the evidence could also establish burglary
The distinction between burglary and larceny from a house under Georgia law

Procedural posture

The defendant appealed from a conviction in city court for larceny from a house, raising three grounds of error regarding an amendment to the accusation, the jury charge on the relationship between burglary and larceny from a house, and the sufficiency of the evidence.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Blandford, Justice.

The plaintiff in error was accused in the city court of larceny from the house by stealing therefrom certain chickens. The original accusation was for simple larceny for stealing the chickens of Cunningham, the prosecutor. The solicitor-general, who prosecuted the case in the absence of the city solicitor, who was indisposed, before the trial was entered on, asked the counsel for the accused if they would agree that the accusation should be so amended as to charge the offence to be that of larceny from the house; this they agreed to in open court, the accused being present. After the trial had proceeded to the extent of swearing the jury, the solicitor discovered that the charge, as it had been amended, alleged the property to be in John Barlow, the accused. He called the attention of the court and the counsel for the accused to this fact, and proposed to amend by alleging the property to be that of Cunningham, the prosecutor. The defendant’s counsel objected to this further amendment. The court overruled the objection and allowed the amendment to be made, and this is the first exception by defendant, and error is assigned on this exception. This court is of the opinion that the court below committed no error in allowing the amendment to be made. The agreement of defendant’s counsel in open court that the accusation might be changed from simple larceny to that of larceny from the house, embraced the right of the solicitor to make a good and perfect accusation for larceny from the house ; and to allege the property stolen tobe in defendant, was not a good and perfect accusation. This agreement was entered into at a time when the solicitor could, of his own motion, have withdrawn the accusation and have presented one as he desired. The parties should be held to their agreement made in open court. The amendment, having been made after the jury had been sworn, was proper because it was done under the-agreement which had been made before the trial was entered on,and was but a cons ummation of that agreement.

The next ground of error is as to the charge of the court to the effect that, if the accusation and facts of the case make a case of burglary, yet if they also make a case of larceny from the house, the defendant could be convicted of this latter offence. And in this we think the court was ■also right. Burglary, according to our law, is the breaking and entering with intent to commit a felony or larceny, or, after breaking and entering, stealing from the house so broken or entered any property, etc. Larceny from the house is the breaking or entering any house with intent to steal, or, after breaking or entering said house, stealing therefrom, etc. So it will be perceived that where the burglary consists in breaking and entering the house and stealing therefrom, then it embraces larceny from the house. These two offences are closely related, and they only differ as to the character of the house broken and entered, burglary being restricted to the mansion house or house within the protection of the dwelling-house, and a house where valuable goods are stored, whereas larceny ■ from the house may be committed from any house. Code .§§4386,4413. The case reported in 60 Ga. 88, decides this question.

The last ground of error is that the verdict is not ■supported by the evidence. This ground is wholly destitute of merit, there being ample evidence to support this verdict.

Judgment affirmed.