Everett v. State
| Decision Date | 17 November 1914 |
| Docket Number | 5868. |
| Citation | 83 S.E. 428,15 Ga.App. 390 |
| Parties | EVERETT v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where the jury in a criminal case are fully and correctly instructed by the court on the law as to the defendant's statement to the court and jury, and as to their duty to acquit unless satisfied of his guilt beyond a reasonable doubt, the omission to charge specifically that such a doubt may grow out of the defendant's statement is not error.
Where an indictment charged the theft of three hogs, particularly described as the property of a named person, and the evidence disclosed that these three hogs, as well as a fourth hog, the ownership of which was unknown, had been stolen, an instruction to the jury that if they believed, beyond a reasonable doubt, that the defendant unlawfully, wrongfully and fraudulently took and carried away the hogs described in the indictment, with intent to steal the same, and if they believed such hogs, or any one of them, to be the property of the person named in the indictment as the owner of the three hogs alleged to have been stolen, then the offense of larceny would be made out is not subject to objection as authorizing the jury to convict in the event they believed the defendant had stolen a hog not described in the indictment, and which did not belong to the person named therein as the owner of the three therein described.
On the trial of a criminal case which depends entirely on circumstantial evidence it is the duty of the court to charge the jury as to the weight and value of circumstantial evidence, even where not requested so to do; but where the case does not depend solely upon circumstantial evidence, it is not error for the court to omit such a charge, in the absence of a timely written request.
Error from Superior Court, Early County; W. C. Worrill, Judge.
Ivery Everett was convicted of larceny, and brings error. Affirmed.
Rambo & Wright, of Blakely, for plaintiff in error.
B. T Castellow, Sol. Gen., of Cuthbert, and R. R. Arnold, of Atlanta, for the State.
The defendant was charged with stealing three hogs belonging to one J. M. Windsor and particularly described in the indictment. The evidence for the state showed that Windsor missed three hogs at the usual feeding time, and after dark approached the house of the defendant and there heard hogs squealing, and saw a buggy drive away on the public road that he followed on foot as rapidly as possible, until he reached Hilton Station, where he procured a buggy, with which he overtook one Kelley Cartledge, who was driving a mule hitched to an open buggy containing two hogs, one of which was a hog of Windsor and one of the hogs described in the indictment, and the other a sow unknown to him; that upon Cartledge's statement to Windsor and the officer that he (Cartledge) had obtained these hogs from the defendant Windsor returned to the defendant's house, and there found the other two missing hogs described in the indictment; that the defendant knew these last-mentioned two hogs were the property of Windsor, and told Windsor that if they were his hogs he wanted him to have them, and Windsor took them out of the defendant's pen the next day; that the defendant told Windsor that he was willing to do almost anything to effect a compromise then, and did not want the matter to go any further, but Windsor refused to compromise and took out a warrant for the defendant that night. Cartledge was sworn in behalf of the state, and testified positively that he got the two hogs, found in his possession by Windsor and the officer, from Ivery Everett, the defendant, who he said claimed them as his own; that he and Everett caught the hogs with dogs late that afternoon, and carried them to Everett's house, where two were placed in Everett's pen and the other two in Cartledge's buggy; that after supper at the defendant's house, Cartledge drove off towards his home with the unknown sow and the other hog belonging to Windsor, which were found in his buggy; that Everett turned over these hogs to him in order that he might raise pigs from the sow on halves, and might fatten the other hog on halves. The defendant made a statement at the trial admitting that he and Cartledge caught the sow and three shoats and brought them to his house as stated by Windsor and Cartledge, but adding that the sow was his stepfather's and that the shoats were found with her. He did not claim that the shoats were his property, or that they were the pigs of the sow, which he said he had obtained from his stepfather, though he said this sow had some pigs, thus leaving the inference with the jury that the shoats were possibly the pigs of the sow, or that he believed them to be. Windsor testified, also, that he had seen this particular black sow all the year, but did not know whose sow she was, but that she was not the mother of these shoats. The defendant was convicted, and on the recommendation of the jury was sentenced as for a misdemeanor.
His motion for a new trial was overruled, and to this judgment he excepts.
"The doubt of the law does not mean a fanciful doubt, it does not mean a vague suspicion or a bare possibility that the defendant may be innocent, but it means a doubt which has some reasonable foundation on which to rest, it means the doubt of an upright, fair-minded man and juror, who is honestly in search after the truth, and which doubt grows out of the evidence, the want of evidence, or proven circumstances in the case."
It is alleged that this was error because the court omitted to instruct the jury that if the defendant's statement created in their minds a reasonable doubt, they should give him the benefit of that doubt, and that this charge eliminated the defendant's statement as a means whereby a reasonable doubt might be created in their minds. The same point raised by this exception was ruled on by this court in the case of Early v. State, 14 Ga.App. 467 (2), 81 S.E. 385, 386 (2). See, also, cases there cited. In this instance there is obviously no merit in the exception, since in immediate connection with the charge complained of and following next thereafter, the court instructed the jury that they might believe the prisoner's statement in preference to...
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