Clifford v. State , 10 Ga. 422 ( 1851 )

By the Court.

Warner, J.

delivering the opinion.

[1.] The letters of the defendant were admitted to be in his handwriting, and were properly admitted in evidence by the Court below.

The evidence of Mrs. Carver proved an independent fact, that two of the reputed sons of free George, applied to her to purchase horses ; whether that fact had any connexion with the obj ect contemplated in the letters of the defendant, was for the Jury to determine.

There is no error, in our judgment, in the charge of the Court to the Jury. By the 45th section of the 14th division of the Penal Code, it is declared, “ that upon the trial of an indictment for any offence, the Jury may find the accused not guilty of the offence charged in the indictment, but guilty of an attempt to commit such offence, without any special count in the indictment for such attempt. Provided the evidence b efore them will warrant such finding.” Prince, 664. By the admissions of the defendant, he had promised to carry four negroes North; they agreeingto be sold once on the way. These negroes were stout carpenters, who met the defendant at their father’s, who was free, and who had agreed to furnish a couple of horses and wagon to start on. There was some evidence at least, of an attempt to steal the slave, Sam, who is proved to be a carpenter, and the reputed son of free George. Whether the defendant was prevented from stealing Sam by his running away, or from any other cause, was a question for the Jury. Although the evidence, in thejopinion of the Jury, may not have been sufficient to prove the fact of stealing the negro, Sam, by the defendant; yet, there is, in our judgment, evidence from which the Jury might have found him guilty of the attempt to commit the offence. In cases of this character, owing to the particular species of property alleged to have been stolen, positive evidence of guilt, is rarely attainable, and if it should be required in all cases, a conviction would seldom, if ever, be had.

The guilt of the accused, in most instances, can only be shown by circumstantial evidence.

The Jury being the proper and exclusive judges of the weight of the evidence submitted to them, as to the guilt or innocence of the defendant, and having found him guilty of an attempt to commit the offence charged in the indictment, we cannot say that there was not sufficient evidence to justify their verdict.

Let the judgment of the Court below be affirmed.