McNabb v. State

• Decision Date: 11 November 1931
• Docket Number: 21828.
• Citation: 161 S.E. 369,44 Ga.App. 306
• Parties: McNABB v. STATE.
• Court: Georgia Court of Appeals

161 S.E. 369

44 Ga.App. 306

McNABB v. STATE.

No. 21828.

Court of Appeals of Georgia, First Division

November 11, 1931

Syllabus by the Court.

Failure to charge on circumstantial evidence held not error in prosecution for possessing burglar's tools, where possession was shown by direct evidence.

The officers making the arrest testified that they saw burglar's tools on defendant, and that tools fell from defendant's person when he stood up.

There being abundant evidence of the defendant's guilt of the crime charged, and the evidence being not wholly circumstantial, the court did not err in failing to charge the law of circumstantial evidence, nor in overruling the motion for a new trial.

One is presumed to intend the natural consequences of his acts; and there being direct evidence that the defendant possessed tools commonly used for the commission of burglary and safe cracking, as charged in the indictment, and only the intent having to be inferred, the trial judge, in the absence of a timely request, was not required to charge the law of circumstantial evidence.

Error from Superior Court, De Kalb County; John B. Hutcheson Judge.

J. H McNabb was convicted of possessing tools commonly used for commission of burglary, larceny, safe cracking, and other crimes, with intent to use the same in the commission of crime, and he brings error.

Affirmed.

Branch & Howard, of Atlanta, for plaintiff in error.

BLOODWORTH J.

The indictment in this case charged that John H. McNabb and Adger B. Chapman did have in their possession certain named "implements and things adapted, designed, and commonly used for the commission of burglary, larceny, safe-cracking and other crimes," with the intent to use same in the commission of crime. McNabb alone went to trial. He was convicted and made a motion for a new trial, which was overruled, and he excepted.

His two special grounds of the motion for a new trial assign error on the failure of the court to charge the law on circumstantial evidence. The substance of the state's testimony is that two officers, while patrolling the city of Decatur, saw the defendant and his partner at one or 1:30 o'clock at night; that defendant's partner had a pistol, and also had a sledge hammer, which he attempted to hide and finally threw away when seen by the officers; that defendant had a great many tools on his person; that these tools were commonly used for the commission of burglary and safe cracking; that the defendant broke loose from the officer and ran; that ashe ran he tried to throw away something, and later a pistol was found where defendant fell, as he was being chased by the officer; that more burglary tools and a great many cartridges were found at the defendant's house; and that the defendant and his partner gave assumed names when they were arrested.

The offense charged in the indictment was the possession of tools commonly used for burglary and safe cracking, and there was direct positive evidence that the defendant had the tools in his possession, and that they were tools commonly used for the commission of burglary and safe cracking. An arresting officer testified: "I have seen these tools before. They are the tools that fell off of McNabb's person when he stood up. These cotton gloves were in McNabb's pocket. *** He [McNabb] had these tools on him. The reason I know that he had them is that I...