Kelly v. State

Citation82 Ga. 441,9 S.E. 171
PartiesKelly v. State.
Decision Date18 March 1889
CourtSupreme Court of Georgia

Criminal Law—Evidence—Burglary.

1. Where there are three grades of offense, and the evidence is equally consistent with any one of the three, a conviction of the highest grade is not warranted. To convict of burglary, rather than larceny from the house, or receiving stolen goods knowing them to be stolen, the evidence should be sufficient to exclude all reasonable doubt as to the fact that the house was closed, and the goods within it, at the time of the alleged burglary.

2. That another person, also under indictment for the same offense, has admitted that he was the guilty party, is not evidence in favor of the accused on trial.

3. Where a conversation is referred to by a witness, and is relevant only as matter of inducement to explain why he entered upon a certain investigation, it is better to admit the fact of the conversation, but to exclude all the details and particulars of the same.

(Syllabus by the Court)

Error from superior court, Chattahoochee county; Smith, Judge.

C. J. Thornton, Z. A. Littlejohn, and B. A. Thornton, for plaintiff in error. J. H. Worrill, Sol. Gen., for the State.

Bleckley, C. J. The indictment was for burglary, and the accused was found guilty. His motion for a new trial was overruled. The house alleged to have been broken and entered was the property of Wooldridge, and consisted of two rooms, in one of which Louis Logan, a colored man, resided. In the other were stored certain articles of personal property, including a quantity of guano in sacks. This room had a door, which was kept locked. It also had a window, through which the employes of Wooldridge, the owner, entered, and carried out the guano as it was needed for use. The window had a sash, which was raised and lowered as occasion required. There is no direct evidence that Kelly either broke or entered this room. The inculpating evidence against him is that a sack of the guano was found in his possession at his house, some 3 miles distant from these premises, and his wagon was tracked, from a point some 200 yards from the place where the guano was stored, to his house. It is certain that his wagon was used to haul the sack; and there is no evidence, save his own statement, that it was not so used by himself. His explanation is that he bought the guano from Louis Logan, and that Logan borrowed his wagon for the purpose of making delivery. There is no want of sufficiency in the evidence to justify the conviction, save that it lacks sufficient force upon the question of breaking and entering. Wooldridge, the owner of the guano, and of the house in which it was stored, testifies that he was absent from home during the night when the burglary is supposed to have been committed; that on the previous day his employes were taking out guano through the window; that in the evening (meaning the afternoon) he saw the window, and the sash was then down; that sometimes the window was left open in the day-time; at night it was secured, —such were his orders, and, "if it were not secured that night, it was their carelessness, —it was contrary to orders." He testified that when he returned home next day he found the sash up, but that his hands had already carried out one load of guano that day. None of his employes were examined, and so there is no certainty whether they raised the sash and left it up the previous afternoon, or in what condition it was found when the...

To continue reading

Request your trial
13 cases
  • Green v. State
    • United States
    • Georgia Supreme Court
    • September 7, 1978
    ...S.E. 752 (1896); Briscoe v. State, 95 Ga. 496, 20 S.E. 211 (1894); Woolfolk v. State, 85 Ga. 69(15), 11 S.E. 814 (1890); Kelly v. State, 82 Ga. 441(2), 9 S.E. 171 (1889); Daniel v. State, 65 Ga. 199(1) (1880); Lyon v. State, 22 Ga. 399(1) (1857). The trial court did not err under the law of......
  • James Donnelly v. United States
    • United States
    • U.S. Supreme Court
    • April 7, 1913
    ...People v. Hall, 94 Cal. 595, 599, 30 Pac. 7. Georgia: Lyon v. State, 22 Ga. 399, 401; Daniel v. State, 65 Ga. 199, 200; Kelly v. State, 82 Ga. 441, 444, 9 S. E. 171; Delk v. State, 99 Ga. 667, 671, 26 S. E. 752; Lowry v. State, 100 Ga. 574, 28 S. E. 419; Robison v. State, 114 Ga. 445, 447, ......
  • Emmett v. State
    • United States
    • Georgia Supreme Court
    • April 4, 1974
    ...a new trial, inasmuch as the admissions would not be completent evidence in behalf of the accused were a new trial ordered. Kelly v. State, 82 Ga. 441, 9 S.E. 171, and cases cited. Briscoe v. State, 95 Ga. 496, 20 S.E. 211. And see Rawlins v. State, 126 Ga. 96, 99, 54 S.E. 924; Attaway v. S......
  • Watkins v. State
    • United States
    • Georgia Supreme Court
    • February 8, 1945
    ... ... It is not the policy ... of our law to permit the confession of a third person, made ... after the criminal enterprise has ended, to be used for any ... purpose except to establish the guilt of the party who made ... it. Lyon v. State, 22 Ga. 399; Kelly v ... State, 82 Ga. 441(2), 9 S.E. 171; Robison v ... State, 114 Ga. 445(2), 40 S.E. 253; Gibbs v ... State, 144 Ga. 166, 86 S.E. 543; West v. State, ... 155 Ga. 482(1), 117 S.E. 380; Whitaker v. State, 159 ... Ga. 787, 127 S.E. 106; Bryant v. State, 197 Ga ... 641(9), 30 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT