Riley v. State

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL, J.
• Citation: Riley v. State, 1 Ga.App. 651, 57 S.E. 1031 (Ga. App. 1907)
• Decision Date: 25 April 1907
• Docket Number: 243.
• Parties: RILEY v. STATE.

57 S.E. 1031

1 Ga.App. 651

RILEY v. STATE.

No. 243.

Court of Appeals of Georgia

April 25, 1907

Syllabus by the Court.

In a criminal case, in which the guilt of the defendant is dependent wholly on circumstantial evidence, the jury should be instructed that, if the proved facts are consistent with innocence, the defendant is entitled to an acquittal.

An allegation of ownership in A. B. as to two gallons of whisky is not sustained by proof that four gallons of whisky contained in two two-gallon jugs, had been purchased jointly by A. B. and two others, and was in the custody of C. D. and A. B. at the time of the larceny, in the absence of any proof that there had been a division of the whisky, and in the absence of any evidence by which one of the two-gallon jugs could be identified or distinguished from the other.

Proof of an inculpatory admission will not authorize a charge upon the subject of confession. "There is a very wide distinction between admitting the main fact, and admitting some minor or subordinate fact or series of facts, which could be true, whether the main fact existed or not." A confession is a voluntary admission of guilt. An admission as applied to criminal cases, is the avowal of a fact or of circumstances from which guilt may be inferred, but only tending to prove the offense charged, and not amounting to a confession of guilt.

Error from Superior Court, Douglas County; Wright, Judge.

One Riley was convicted of larceny, and brings error. Reversed.

W. A James, for plaintiff in error.

W. K Fielder, Sol. Gen., for the State.

RUSSELL J.

The defendant was convicted of the offense of simple larceny, and excepts to the overruling of his motion for new trial. It appears from the evidence that Marion Miller and Bud McCoy went to Atlanta, and that they returned to Douglasville with four gallons of whisky, contained in two two- gallon jugs. One gallon belonged to Bud McCoy, two gallons to Marion Miller, and one gallon to Marion's mother; but there had been no division, nor does the evidence disclose any marks of identification by which the jugs could be distinguished or separated, so as to show which jug, or that either particular jug, contained Marion Miller's whisky. It seems that the arrival of these four gallons of whisky created quite an excitement among a certain class of Douglasville's citizenry, and Miller and McCoy took turns in watching the wagon and guarding against anticipated predatory attacks from the anxiously thirsty who watched their treasure with eager eyes. Their wagon was stopped at a restaurant just above the courthouse, and Miller went into the restaurant and ate his supper, while McCoy watched the whisky until he returned. Then McCoy went to supper, and Miller watched while he ate. While McCoy was eating and Miller was watching the wagon, the defendant, Ed Riley, who was on the sidewalk opposite the wagon, called Miller to him and tried to borrow some of the whisky, offering to send to Atlanta and get whisky and return it at once. This Miller refused to do. He stepped back to his wagon, and found that one of the jugs was gone. He hunted for the whisky, but could not find it. With reference to the loss of the whisky, Miller testified that he told the defendant that "part of it belonged to Bud McCoy, part to my mother, and the other to myself, and that we wanted it for Christmas. Ed stood there in front of me, talking, for some time. I was standing with my back to the wagon and my face to Ed Riley. In a short time I turned around and looked into the wagon, and found that one of our jugs, containing two gallons of whisky, was gone. I know Ed Riley did not take it, because I was looking at him all of the time, and he didn't get any nearer to the wagon than six or eight feet, at any time before the whisky was taken by some other person. I didn't see Joe Garmon around there. There were a number of persons out in the street near the wagon, but I didn't know who they were." Bud McCoy testified that he was at supper when the whisky was taken. The state further proved that the defendant said to one witness at the depot, where they received the whisky, that they could not carry all of that liquor out of town, that he had to have some of it, and he proposed to this witness that, if the witness would take the liquor out of the wagon, he (the defendant) would engage Miller's attention from the wagon. Witness declined to do this, and Riley then said: "If I can see Big Joe, he will do it." It was also in testimony that after the loss of the whisky, and during the search for it, the defendant came after the marshal to go and see about the whisky that had been stolen, and, in a conversation in which Marion Miller accused Riley of being connected with the taking of their liquor, the defendant admitted that, if he could see Big Joe, he could get it. This was said after Miller accused the defendant, and in response to Miller's statement that all he wanted was for...