Wise v. The State Of Ga.

• Decision Date: 31 January 1858
• Citation: 24 Ga. 31
• Parties: Robert Wise, plaintiff in error. vs. The State OF Georgia, defendant in error.
• Court: Georgia Supreme Court

24 Ga. 31

Robert Wise, plaintiff in error. vs. The State OF Georgia, defendant in error.

Supreme Court of the State of Georgia

JANUARY TERM, 1858.

Indictment, for larceny from house. Tried before Judge Fleming, at May Term, 1857.

Robert Wise was indicted for stealing a set of harness belonging to Frederick A. Tupper, from the stable of Stephens & Elliston, in the city of Savannah.

Upon the trial, the following testimony was Introduced on the part of the State:

Thomas F. Stephens, testified, "that he boarded Mr. Tupper's horse at his stable, his harness was also left with him. The stable was kept by him and Jacob Elliston, as copartners, under the name of Stephens & Elliston. Every evening, before he left the stable, he always went around to see that everything was right. Mr. Tupper came in between seven and eight o'clock, on the evening of the third of last July, and left his horse and harness. The next morning he came for his horse and harness, and on looking for the harness, he found it was gone. The harness was there the evening before. One of his boys told him the harness was gone, and on going and looking for it he found it was so. It was a buggy harness, and worth about forty dollars. Told his boy not to say anything about it. On next Sunday I told my son to go around and see if he could see anything of it. He was gone about twenty minutes, when he came back and said he had seen part of the harness. He asked him where it was; he told me, and going there I found it on a roan horse, formerly belonging to him, which the prisoner was driving in a funeral procession. He took Mr. Russell andwent after him, and had him arrested, and carried him to the guard-house. He asked prisoner, at the guard-house, where the balance of the harness was; he said, he did not know, that he had got the harness which he had, from his (witness\'s) boy, Lloyd. Prisoner had traces, bridle, hames and collar. The collar had a peculiar mark on it, which enabled him to identify it. Prisoner said he knew nothing of the balance of the harness. Prisoner said that his boy Lloyd brought the harness to him, between nine and ten o\'clock on the night of the third of July and lent it to him. Boy, Lloyd, went out in a carriage, about five o\'clock in the evening, and came back a few minutes before twelve o\'clock. The next day after he had prisoner arrested, he went to him and told him he wanted to get the balance of the harness, and told him if he would prove it on his boy Lloyd, he would not prosecute him. The prisoner then wrote him an order for the balance of the harness, while in Mr. Russell\'s office. It was in a shop near the gas-works, kept by Mr. Larkin. He went there and found the balance of it. This took place in Savannah, in the county of Chatham, in the State of Georgia. Harness was the property of Frederick A. Tupper."

On his cross-examination, witness said: "He had several boys in his employ. Had lost articles from his other stable. Did not see prisoner in the neighborhood of the stable the night the harness was taken. He went home and came back about ten o'clock and staid there until after 12 o'clock. He first saw the harness at the funeral. There were carriages and harness from his stable at the funeral. Boy Lloyd was in the habit of passing between his two stables."

Frederick A. Tupper testified: "That he left his horse and buggy at Stephens & Elliston's stables on the 3d July last. He bought the harness of William H. May, and paid him fifty dollars for it. His harness was also at the stable. He was in the habit of leaving it at the stable. Was told it was stolen. First saw it at the barracks or a portion of it; saw the other portion at Mr. Larkin's store, near the gas-works, which Mr. Stephens got. He identified the harness as his."

Here the testimony closed.

Counsel for prisoner, contended that neither of the witnesses proved that the harness was stolen at all, or that the prisoner ever entered the house from which said harness had been removed. That the confession of the prisoner, as to how he got possession of the harness was invoked and given in as part of the State's evidence, viz.: "That he had borrowed the harness from a slave named Lloyd, the property of Thomas F. Stephens, and that the indictment did not sufficiently charge the offence."

The jury found the prisoner guilty. Wherefore his counsel moved for a new trial on the following grounds:

1st. Because the verdict was contrary to law.

2d. Because the verdict was contrary to evidence.

3d. Because since his trial, the prisoner has discovered new and material evidence of which he had no knowledge until after his trial, and which no effort on his part could have procured.

The presiding Judge refused the motion for a new trial, and counsel for prisoner excepts.

The following affidavits were filed in support of the motion for a new trial, on the ground of subsequently discovered evidence:

The State,

vs.

Robert Wise.

In Chatham Superior Court,

May Term, 1857.

Indictment: Larceny from the house. Verdict:

Motion for New Trial.

Personally appeared, before me, William Clark, who, being duly sworn, deposes and says, that he was at the bar roomof Robert Wise, the defendant, on the night of the third of July, 1856, between the hours of nine and ten o\'clock. That during the time he was in said bar room, a negro boy slave, named Lloyd, the property of Thomas F. Stephens, came in with a harness, which he put upon the counter, and which, he said, he loaned to said Wise, to be used the next day. That the conversation, which passed between the said boy Lloyd and the said Wise was in reference to the loan of the harness, to go to a funeral. That the said Wise prom ised the said slave Lloyd to return the harness as soon as he had used it, which was to be for a few hours the next day. Deponent has not seen said Wise since, having left the State soon after, and only returned on Friday last. That deponent has had no opportunity to communicate with the said Wise, or his counsel. That since the conviction of the said Wise, of which the deponent has just been informed, he made a communication of the foregoing facts to his friends, deponent not knowing before that he had been prosecuted.

(Signed,) WM. X CLARK.

Sworn to, before me, this 17th June, 1857.

(Signed,) Philip M. Russell, J. P.

Personally appeared before me, Arthur Walsch, who being duly sworn, deposes and says, that he was in the employment of Stephens & Elliston, in July, 1856. That he was at their stable on the third of July of said year, and slept there that night, and the harnesses were put away that evening. That Stephens & Elliston kept severe dogs tied at the doors, and that no stranger could enter the stable without those within being alarmed. That deponent saw the negro man Lloyd, that evening, in the room where the harness was. That said Lloyd was a negro of very bad charater, and was sent away on suspicion of burning the stable. That depo-nent is not acquainted with Robert Wise, and has only made the above facts known since the trial.

(Signed,) ARTHUR X WALSCH.

Sworn to, before me, this 20th June, 1857.

(Signed,) Philip M. Russell, J. P.

Personally appeared, before me, James Larkin, who being duly sworn, deposes and says, that in July, 1856, he loaned his horse and buggy to Robert Wise, the defendant, to go to a funeral. That deponent's harness was not fit for use, That said Wise stated that he had borrowed a harness, and brought it to deponent's stable. That the said harness proved too large for deponent's horse, and deponent was about to bore a hole in the strap connecting the crupper, so as to make it fit, when Wise objected, saying it was a borrowed harness. That deponent then made use of a part of his wagon harness, and that portion of the harness not used, and brought by Wise, was left at deponent's house. That deponent was subpoenaed on the part of the State, but was not sworn as a witness. That deponent never communicated to the said Wise, or his counsel, what facts he could prove, until after his trial, when the State declined to swear him, he, deponent believing that his testimony would be against the said Wise, and in favor of the State.

(Signed,) JAMES LARKIN.

Sworn...