Houser v. The State Of Georgl. In Error

• Decision Date: 31 January 1877
• Citation: 58 Ga. 79
• Court: Georgia Supreme Court
• Parties: Lewis Houser, plaintiff in err0r. v. The State of Georgl. defendant in error.

58 Ga. 79

Lewis Houser, plaintiff in err0r. v. The State of Georgl. defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Criminal law. Indictment. Burglary. Practice in the Superior Court. Before Judge Hill. Houston Superior Court. November Term, 1876.

Reported in the opinion.

J. F. Riley; Davis & Nottingham, by brief, for plaintiff in error.

C. J. Harris, solicitor general, by G. W. Gustin, for the state.

*Jackson, Judge.

The defendant was indicated for the offence of burglaryat night; he was found guilty and sentenced to the penitentiary for five years; he made a motion for a new trial on various grounds therein contained; the motion was overruled on all the grounds, and the judgment of the court in thus overruling the motion, is the error complained of.

1. The defendant demurred, on the trial, to the sufficiency of the indictment in this, that it alleged that he did break and enter in the night-time, a certain store-house where valuable goods were stored with intent to steal, and did take and carry away therefrom, sixty dollars in money and one can of brandy-peaches, of the personal goods of one Peter Lewis; the defendant insisting that the indictment did not allege any intent to commit a larceny or felony. We think that the allegation that he broke and entered "with intent to steal, " and that he took and carried away the money and brandy-peaches, sufficiently technical under our Code. Code, § 4628.

We think also that the allegation of the "personal goods of one Peter Lewis, " is sufficient to charge the property of the goods to have been in him as the owner thereof. If there had been any merit in the objection to the indictment, it was cured by verdict.

2. During the course of the trial, defendant's counsel requested the court to read, from Wills on Circumstantial Evidence; certain passages printed in that book, embracing, perhaps a page or two, and to charge the same as law applicable to this case; the court refused to do so, and this is alleged also as error. We think that the court was right. The court need not read to the jury from any book whatever. It is the duty of the judge to give the law applicable to the case in charge to the jury, but not to read it out of any text-book, unless he wishes to do so.

3. The court charged the jury "that the state must make out the case beyond a reasonable doubt, but that it is *not necessary for the state to show that it is impossible for the crime to have been committed by anybody else, or that it might not, by bare possibility, have been done by some one else; but the state must show that it was the prisoner to a moral certainty."

This charge is also excepted to, but we think that it gave the law of the case correctly to the jury.

4. The defendant also excepted to the following charge: "Gentlemen, look to the proof; you have heard what it was, and if the proof satisfies you it was done in the night; that the witness left at night, and came there again at daylight and found the store broken open, why, then, you have a right to say it was in the night." The evidence was to the effect that the witness usually left his store after dark and returned to it sometimes at daylight, and always between daylight and sunrise, and that on this occasion, he left about eleven o'clock at night and returned between daylight and sunrise. Under this proof, we do not think the charge was erroneous or hurt the defendant; especially as, by request of defendant's counsel, the court charged, "If the jury believe that the crime could have been committed, under the evidence, between daylight and sunrise, then they must acquit." The facts here are distinguishable...