Wiley v. State, 605.

• Court: United States Court of Appeals (Georgia)
• Writing for the Court: RUSSELL, J.
• Citation: 59 S.E. 438,3 Ga.App. 120
• Parties: WILEY v. STATE.
• Docket Number: 605.
• Decision Date: 25 November 1907

59 S.E. 438

3 Ga.App. 120

WILEY
v.
STATE.

No. 605.

Court of Appeals of Georgia

November 25, 1907

Syllabus by the Court.

The verdict was authorized by the evidence, and no error is assigned which would require the grant of a new trial.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, §§ 164-169.]

"The rule is too well settled to be disturbed that the possession of stolen property immediately after it is stolen puts upon the possessor the burden of proving that his is not a guilty possession."

[Ed. Note.-For cases in point, see Cent. Dig. vol. 32, Larceny, § 129.]

"A verbal inaccuracy in a charge resulting from a palpable 'slip of the tongue,' and which clearly could not have misled the jury, is not cause for a new trial," especially when this "slip of the tongue" occurred in immediate connection with correct instructions upon the same subject twice repeated.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2210.]

An exception to a charge, not erroneous in the abstract, must point out its specific defect, and the attention of the court must be specifically directed to the error in an instruction alleged to be erroneous. A written request should be made where instructions on a special defense are desired.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 2025.]

Error from City Court of Sylvester; Frank Park, Judge.

John Wiley, alias West Stinson, was convicted of larceny from a house, and he brings error. Affirmed.

Payton & Hay, for plaintiff in error.

J. H. Tipton, Sol., for the State.

RUSSELL, J.

The plaintiff in error was convicted of larceny from the house. In his motion for new trial, which was overruled, he makes various complaints (as to the insufficiency of the evidence and as to certain alleged errors contained in the charge of the court), which are presented for our consideration by the bill of exceptions.

1. It is insisted that the evidence, while showing that the umbrella in question was stolen, fails to prove the defendant to have been the thief; that the circumstances attending the defendant's possession, its publicity and the bona fides of his claim of right, themselves afforded a sufficient explanation of his possession of the stolen property. The evidence does show that the accused was found with the umbrella in broad daylight on the streets of the city of Sylvester on the afternoon of the very day on which it was stolen, that he made no effort whatever to conceal it, and that, when the prosecutor accosted him about it, he told him from whom he had borrowed it, and insisted on his right to keep it and return it to the person from whom he had borrowed it. All of these circumstances, however, were subject-matter of consideration by the jury, and we cannot say that they did not attach proper importance to them in weighing the defendant's explanation of his possession and balancing it with the fact of the actual possession of the stolen property, especially as the record discloses that the defendant told the prosecutor that he got the umbrella from one William Johnson, who was not produced or accounted for, was unknown to any of the witnesses in the case, and the defendant in his statement said that he got the umbrella from John Wiggins, who appeared likewise to have been unknown to any one connected with the case.

A further contention of the plaintiff in error is that the evidence is silent as to the ownership of the house; that the location of the house is not as proved laid in the accusation; that the evidence does not show what kind of house it was and whose it was; that the umbrella was left in a house in course of construction, and the evidence, therefore, is not sufficient to support a verdict of guilty of larceny from the house, even though the defendant might be guilty of simple larceny. We found nothing in the evidence which would compel the conclusion that the house was in course of construction. If such was the fact, the defendant should have brought it out in the evidence. The testimony of the prosecutor was that he lost the umbrella at Mr. Strangward's new house, and that he had it in the china closet between the dining room and the kitchen, inside the house. We think this testimony sufficiently proves the ownership of the house, and that the house was such as that larceny from the house could be committed therefrom or therein, and that the testimony does not raise any inference that the house was incomplete, so incomplete, as to affect the question of the defendant's guilt of the offense as charged. In view of the fact that old houses are frequently remodeled or repaired, we do not think that the testimony of the prosecutor that he was...