Jackson v. State

Harwell, J.

(After stating the foregoing facts.) It is contended-that the State failed to prove the ownership as laid in the indictment; that the ownership should have been alleged either in Pullen or Mrs. Lewis. In our opinion the evidence sustains the allegation of ownership as laid in the indictment. It shows that the husband had charge of the property as agent for his wife. Pullen was simply an employee or servant. In larceny the ownership‘may be laid in the agent, but not in a servant. “A mere servant has only the custody of goods, and he can maintain no action for them; hence he has in them no ownership.” Ownership may be laid in “any other person having the lawful possession of the article, in distinction from a bare custody thereof.” 2 Bishop Crim. Procedure, §§ 721, 722. “An agent has sufficient special property in goods of his principal in'his charge or care to support an indictment which describes them as his property. . . Where servants have in their custody the goods of the master the property should be laid in the master.”. 2 Russell on Crimes, 1287, 1288. “It is a clear maxim of the common law that where one has only the bare custody of the goods of another the legal possession remains, in the owner. '. . A mere servant or employee has no special property” — that is, such as will support the allegation of ownership in an indictment for larceny. “A distinction is drawn in some of the cases between the possession of a -servant and that of an agent, an agent being considered a bailee who obtains actual possession of the goods, as distinguished from the mere custody of an ordinary servant.” 17 R. C. L. § 49. “In an indictment for larceny or for burglary the ownership of personal property may be laid in the person having actual lawful possession of the same, although he may be holding it as agent or *148 bailee of another.” Bradley v. State, 3 Ga. App. 622 (3) ( 58 S. E. 1064 ). See also 25 Cyc. 93; State v. Jenkins, 78 N. C. 478 . This ruling is in accord with the decision of the Alabama Supreme Court in the case of Heygood v. State, 59 Ala. 49 , where it is held: “A superintendent of another’s plantation is the servant of the employer; and an indictment for larceny, which charges that the corn stolen was the property of such superintendent, is insuffi'cient.” There was no variance between the’ allegation of ownership and the proof thereof in the instant case, and the trial judge did not err in overruling the motion for new trial.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.