Smith v. State

• Decision Date: 09 September 1937
• Docket Number: 26460.
• Citation: 192 S.E. 647,56 Ga.App. 384
• Parties: SMITH v. STATE.
• Court: Georgia Court of Appeals

192 S.E. 647

56 Ga.App. 384

SMITH v. STATE.

No. 26460.

Court of Appeals of Georgia, First Division

September 9, 1937

Syllabus by the Court.

The jury were authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save the guilt of the accused of the crime charged in the indictment. The judge did not err in overruling the motion for new trial.

Error from Superior Court, Echols County; W. E. Thomas, Judge.

Willie Smith was convicted of larceny, and he brings error.

Affirmed.

West L Cranford and J. G. Cranford, both of Valdosta, for plaintiff in error.

Geo. R Lilly, Sol. Gen., of Quitman, and E. J. Clower, of Atlanta for the State.

GUERRY Judge.

This is a case wherein the State accused Willie Smith of the larceny of certain hogs belonging to R. M. Ham. He pleaded not guilty to the indictment, and the jury on the trial found against him. He excepted to the overruling of his motion for new trial based only on the usual general grounds.

R. M Ham, the prosecutor, testified that on March 1, 1936, he was the owner of the hogs described in the indictment, that these hogs were ranging on Tom's creek and known as Sassasfras Island-about eight or ten miles from Statenville, about two or three miles from Tarver; that on Monday, March 2, he missed the hogs, and after search found them at a stockyard in Valdosta; that when he found them the marks on the hogs' ears had been very recently changed, their ears being bloody from the operation; and that the defendant had worked for him and had helped him handle hogs, and had helped him mark them and get them up in the fall. J. Y. Stokes testified that in March, 1936, he was engaged in the grocery and meat business; that some time before Mr. Ham lost these hogs he saw the defendant and reminded him that he (witness) had had a fire and that he would like to collect his account; and that the defendant replied that he was financially depressed, but that he would try to catch up some hogs and bring them to him as payment. "The next time I saw him was at my store and he was in company with a fellow named Bird or Altman. He was the same man I identified in this court when he was tried in this court, and he was convicted as Lazarus Altman. They arrived at my place in the morning, between seven and eight o'clock and were traveling in a model T Ford truck and they had some hogs on the back in a coop." Witness was approached by the defendant, who told him that he had some hogs out there belonging to his companion, whom he introduced to witness as Mr. Bird. "He asked me did I want to buy them and I told him yes, so Altman [Bird] and I went out to look at the hogs, and when we were out there examining them. * * * I discovered some marks on the ears that were freshly cut; and I remarked to Altman, I asked him what was the trouble, and he said the dogs chewed them when they were catching them." Witness suspected from the condition of the hogs' ears that something was wrong, and suggested to Altman that he take them to Carroll's stockyards and turn them out of the coop where he could see them better. This was done, and witness immediately observed that they were not chewed by dogs. "The hogs at that time appeared to have been cut with a knife of some type, a very smooth cut." Witness then asked the defendant if he knew that Bird (Altman) owned the hogs, and he replied that as far as he knew he did, that he merely brought them up there for Altman (Bird) "in the capacity of a carrier." Witness was still suspicious of the ownership of the hogs, and suggested to Bird (Altman) that he leave them there and, if he found that he owned them he would trade with him the following Saturday. Altman (Bird) agreed to do this, and they all returned to the store of the witness, and he sold Altman (Bird) some groceries on credit, at defendant's request, and upon his guaranteeing the account. Neither Altman (Bird) nor the defendant ever returned to his store. Later in the day he learned that Mr. Ham had identified the hogs as his. Frank Stapleton, a carpenter, was doing some work in Mr. Stokes's store that morning. The defendant introduced Altman to him as Mr. Bird. He saw the hogs and noticed that their heads were bloody. He heard the conversation between Altman (Bird) and Stokes as to the sale of the hogs, and did not hear the defendant say the hogs were his, but did hear him say that he was hired by Altman (Bird) to haul them. Altman (Bird) told him that he bought the hogs from his brother in Lake City, Fla., and that in catching them the dogs had bitten their ears and defendant told him that he went with Altman (Bird) down to Lake City and got the hogs, and that the hogs were caught with dogs, and that that was the reason their ears were bloody.

B. L Petty testified that on Sunday, March 1, about 4:30 in the afternoon, he saw the defendant and Altman together, in the vicinity of Tarver, Ga., "traveling in a little old model T truck, and they had a dog on the truck and a crate on the back." At the time he saw them they were about six miles from the home of the defendant. W. D. Clayton testified that he recalled the time that Mr. Ham lost some hogs. "On Sunday night prior to the time I learned Mr. Ham had lost his hogs, I didn't see anybody, but heard a noise that attracted my attention. The noise was some hogs, which I heard distinctly, and they sounded like they were about at Willie's. That was around eight o'clock at night-eight or nine-and I heard the hogs and truck leave out of there the next morning before day. * * * I heard Willie Smith's truck come in that Sunday night. I had not heard any squealing before the truck got in. I did not hear any squealing after they left with the truck." W. W. Pennington, sheriff, testified that during March, 1936, he had a warrant for the defendant for the larceny of the hogs in question; that he attempted to execute it, but never did; that from the time the warrant came into his hands until the next time he saw the defendant was about six months; that he made search for him during that time; that defendant...