Cook v. State , 29 Ga. 75 ( 1859 )

— Benning J.

By the Court.

delivering the opinion.

Was the Court below right, in refusing the motion for a new trial ?

All the grounds of the motion, may be reduced to this one, that the evidence was not sufficient, to authorize the verdict. Was this one good ?

Cook sel up a claim to the hog. If that claim was a real, and nota pretended, claim, he was notguilty of hog stealing. This may be assumed.

The question then narrows itself, to this; does the evidence show,that his claim was only a pretended, and not a real, claim? We think, it shows, that his claim was a real one.

If his claim was for another, and not for himself, that is a fact which is almost insuperable, to show, that his claim was real. Disinterested stealing is not a supposable case. Perhaps, it is not an impossible case. But see 2 Leach, 1089.

The evidence is strong to show, that his claim was for another, really for another, and not for himself. Let us see.

He said that the hog was Col. Pulaski S. Holt’s.

His conduct answered to his words; he treated the hog as Holt’s. He put the hog in'Holt’s hog-pen, with Holt’s fattening hogs, and, of course, fed him as Holt’s hog, with Holt’s corn. And that he was doing this, Holt knew, or was likely to know, for his negroes must have known it, and the pen was at “the place where, they were accustomed to feed and fatten hogs, previously;” a place, “ with regard to water and the crib, very appropriate to a hog-pen;” not some out of the way, secret place; a place, therefore, which Holt, with perhaps other members of his family, would be likely to visit, often ; a place, indeed, of easy access to the neighbors and all the curious. Then, there is not a circumstance in the evidence, to show that he had any purpose to convert the hog to his own use. Not one. All this appears from the evidence.

Not only did he say both by word and act, that the hog was Holt’s, but Holt himself thought, that the hog was. He so swore. Even Adams, the owner of the hog, and the prosecutor of Cook, said, “the mark looked like Holt's, and he wanted him to see it.” This Holt swore.

Now is not all this enough, to show, that Cook was really claiming the hog, for Col. Holt, and not for himself? We think it is. If so, then that is a fact almost insuperable, to show, that Cook, in setting up a claim to the hog, was acting with sincerity, and not with a mere pretense to hide a theft.

Is there any thing in the evidence to enable us to get over this great fact. Nothing, we think. It is true, that the evidence shows, that the hog was in the mark of Adams, (which was an overbit in each ear, and an underslope in each ear,) and, that Cook insisted, that such mark was made by the buzzards, when the hog, was a very young pig; and, that, in that, he was probably wrong — (although it was in proof that buzzards do mutilate the ears of young pigs, and a buzzard’s bill is not ill adapted to making an “overbit,” and an “underslope” causing little change in the ears’ appearance;) still all this is perfectly consistent, with innocence — with the idea, that Col. Holt had a pig mutilated about the ears, by the buzzards, and that Cook took this hog to be that pig.

And if this fact is ágáinst Cook, another, in addition to those already mentioned, is in his favor. Cook had been the overseer of Col. Holt for “ twelve or thirteen years.” He had the exclusive possession of the plantation, and all the property upon it — Col. Holt residing in Macon. Of necessity, therefore, he was for twelve years largely trusted by Col. Holt, and during all that time had both opportunity and tempta_ tion, to steal from Col. Holt, yet what does Col. Holt say of him? “His general character is irreproachable.” This is what Col. Holt says of him; and Col. Holt’s chance for knowing his character, at least, his character for honesty was, probably, far better, than any other living man’s.

Other witnesses give to Cook, similar testimonials; notone impeaches his character.

We think, then, that the evidence was not sufficient to justify the verdict.

Judgment reversed.