McElroy v. State

• Decision Date: 22 March 1906
• Citation: 53 S.E. 759,125 Ga. 37
• Parties: McELROY v. STATE.
• Court: Georgia Supreme Court

53 S.E. 759

125 Ga. 37

McELROY v. STATE.

Supreme Court of Georgia

March 22, 1906

Syllabus by the Court.

The charge on the subject of the recent possession, not satisfactorily explained, of goods stolen from the house at the time the alleged burglary was committed, was not open to the criticism urged against it.

Generally where the prosecution relies exclusively upon circumstantial evidence for a conviction, it is the duty of the judge, not only to charge upon the law of reasonable doubt, but also whether requested or not, to state to the jury the rule of law applicable in such cases, to the effect that the evidence must connect the accused with the perpetration of the alleged offense, and must not only be consistent with his guilt, but inconsistent with every other reasonable hypothesis. But when a burglary is proved, and the defendant is shown to have been in the recent possession of goods stolen from the house at the time the alleged burglary was committed, and there is also evidence tending to show an implied admission by the accused of his guilt, and the jury are properly instructed as to the weight they are authorized to give to his explanation of his recent possession of the stolen goods, and as to the law touching reasonable doubt in a criminal prosecution, a new trial will not be ordered merely because of the failure of the judge to charge as to what weight the law attaches to evidence of a purely circumstantial nature.

Error from Superior Court, Fulton County; L. S. Roan, Judge.

Herman McElroy was convicted of burglary, and brings error. Affirmed.

S. C Crane, for plaintiff in error.

C. D Hill, Sol. Gen., for the State.

EVANS J.

The defendant was convicted of burglary and excepts to the overruling of his motion for a new trial. The evidence disclosed that the "pressing-club" house of one George Riley was broken into and various articles of apparel were stolen therefrom. The entrance was effected by the breaking of a pane of glass, making a hole large enough to enable a man to enter. On the night after the commission of the burglary the defendant was arrested, and at the time had on his person two of the garments which had been taken from the house. He was asked by the arresting officer where he got these garments, and replied that he purchased them from a boy named Oscar Wyatt, giving at the same time a minute description of the person from whom he claimed to have bought the garments. From this description furnished the officer he was able to identify Wyatt, who was arrested the next night. The defendant was confronted with Wyatt, and the latter was asked, in the presence of the defendant, why he sold these garments to the defendant. Wyatt said he did not, and thereupon the defendant said: "That is not the boy I bought them from, anyhow. I bought them from another boy." Wyatt then said to the defendant: "You know you broke that glass, and you got them clothes, and you hid the clothes up behind that bar, and you got the overcoat." The defendant made no reply to Wyatt, but after they were separated and placed in different cells at the station house, immediately after this conversation occurred, the defendant remarked to the officer: "I will kill anybody that swears against me." The officer subsequently went to the bar designated by Wyatt, and there found the clothing referred to by him. The evidence further disclosed that on the night after the burglary the defendant sold a coat and a pair of pants for a small sum of money to a man who was working at a certain bar; these garments being other than those which the defendant was wearing when arrested. The clothing was positively identified as part of the apparel which had been stolen from the premises burglariously entered. In his statement to the jury the defendant gave a rather confused account concerning his possession of the stolen property. claiming that he bought the clothing from Oscar Wyatt in the presence of several persons, none of whom were present at the trial.

1. The first complaint in the motion for a new trial is based upon the following instruction of the court: "Now I charge you, gentlemen, that if it be shown by the evidence in this case, beyond a reasonable doubt, that some one did break and enter the pressing-club house of George Riley, in this county, and about the time charged in this bill of indictment, and it was his place of business, and you believe that there was valuable goods contained in that house at the time, and that this breaking and entering was done with intent to steal, or if, after breaking and entering, the parties did steal therefrom goods of the value as here charged and as here described, and if it be shown, gentlemen that recently thereafter this defendant was found in possession of those goods, or a portion thereof, so stolen from that house, if...