Thomas v. State

• Decision Date: 11 May 1921
• Docket Number: (No. 12250.)
• Citation: 27 Ga.App. 38,107 S.E. 418
• Parties: THOMAS v. STATE.
• Court: Georgia Court of Appeals

27 Ga.App. 38

107 S.E. 418

THOMAS

v.STATE.

(No. 12250.)

Court of Appeals of Georgia,

Division No. 1.

May 11, 1921.

(Syllabus by the Court.)

Error from Superior Court, Douglas County; F. A. Irwin, Judge.

Lott Thomas, alias Bosey Thomas, was convicted of stealing a mule, and he brings error. Affirmed.

Astor Merritt, of Douglasville, for plaintiff in error.

J. B. Hutcheson, Sol. Gen., of Douglasville, for the State.

BLOODWORTH, J. [1] 1. The accused was charged with stealing a mule from Hainan Word, who was his uncle. On the trial the court did not err in refusing to allow evidence to go to the jury that the mother of the defendant, who lived in the house with Hainan Word, had an interest in the land upon which the home was located. Such evidence would not illustrate the issue before the court, which was the guilt or innocence of the accused.

2. The court charged the jury that, if the property stolen was in the lawful possession of the person alleged in the indictment to be the owner thereof, this would be sufficient to authorize a conviction, although the title might be in another person. This was not error. In Randolph v. State, 16 Ga. App. 32S, 329, 85 S. E. 258, 259, Judge Wade said:

"A special property coupled with lawful possession has been held sufficient to support an allegation of ownership (Robinson v. State, 1 Ga. 563); and where property is fraudulently taken and carried away from the possession of one holding it as a pledgee for security, the pledgee has such, a special property in the pledge as authorizes a conviction under a charge of stealing property belonging to him (Henry v. State, 110 Ga. 750, 36 S. E. 55, 78 Am. St. R. 137). It is well settled that ownership may be laid in a gratuitous bailee (Wimbish v. State, 89 Ga. 294, 15 S. E. 325), and also that a carrier has such an interest in goods in his custody for transportation as to support the allegation of its ownership in an indictment for larceny or burglary (Hall v. State, 7 Ga. App. 115, 66 S. E. 390); and the ownership may be laid in the person having lawful possession of the property, though he holds it as the agent or bailee of another (Bradley v. State, 2 Ga. App. 622, 58 S. E. 1064). It is said in 25 Cyc. 91, that 'Any legal interest in the goods, although less than the absolute title, will support an allegation of ownership. But there must be an actual legal interest, not a mere claim or expectation of interest. * * * The ostensible ownership is, however, enough to justify the description. So far as the thief is concerned, he cannot question the title of the apparent owner.' "

3. Under the facts of this case and in the light of the entire charge, there is no reversible error in the excerpts from the charge of which complaint is made in grounds 6 and 7 of the motion for a new trial, that if the defendant took the property "with intent to steal that would be sufficient to authorize you to find a verdict of conviction. * * * You look to the evidence, and determine what the truth of the matter is; look to the conduct, what he did with the property, how he managed it when he took it, and all about it." That the defendant took the property, that he took it at night, and that he sold it, is shown by the evidence for the defendant. In his statement the defendant said: "I took the mule and sold it." His defense was not that he did not take and sell the mule, but that it belonged to his mother. That the defendant took the mule and that he sold it are therefore not facts about which the state and the defendant are at issue.

"Section 4334 of the Civil Code, which prohibits a trial judge from expressing or intimating his opinion as to what has or has not been proved, refers to the expression or intimation of an opinion touching some fact at issue involved in the case, and not to something that is conceded by both parties. See, in this connection, Springfield v. State, 128 Ga. 281, 54 S. E. 172." Ga., Fla. & Ala. Ry. Co. v. Jernigan, 128 Ga. 503, 57 S. E. 791.

In Taylor v. State, 135 Ga. 625, 70 S. E. 237, 239, Presiding Justice Evans said:

"It is true that under our system of jurisprudence the judge is forbidden to express an opinion as to whether any particular fact has been proved; yet, where the evidence to establish such fact is undisputed, and the fact is admitted by the accused on the trial, it is not necessarily error for the court to...