Minor v. State , 56 Ga. 630 ( 1876 )

Bleckley, Judge.

1. It seems, from authority, that to complete a larceny by A, there may be, by a sort of criminal accretion, another complete larceny by B: 25 Georgia Reports, 515; also, that a man may commit a crime as principal without being present: 30 Ibid., 757. Compare 26 Ibid., 493; Code, sections 4305 to 4308; 17 Georgia Reports, 346; Roscoe’s Cr. Ev., 871, 872, 873. There is matter for much thought in these things, and mystery enough to bewilder one for some days. The Code seems plain; but the same law existed when the 25th Georgia and 30th Georgia Reports were made.. For my own pari, judicial candor obliges me to say that I do not know whether the main staple of Judge Wright’s charge in the present case, about scheming, planning and furnishing brain-work, is good law or not. I am not sufficiently master of üí subject to overrule him, and yet I secretly wish he would not charge the like again. It is some little relief to my perplexity to find that the charge is unguarded in that part of it which refers to the prisoner as possibly instructing another when and how to steal. There is certainly no evidence to warrant that part of the charge; and on that account, all the members of the court concur in pronouncing it erroneous.

2. There was no error in calling the jury’s attention to a possible guilty motive for the open dealing and. truthful answer of the prisoner. Men hide under light as well as under darkness. Nice assumes the frank demeanor of virtue. To do right, or seem to do right, after doing wrong, is often the best means of shunning detection. Still, the natural and probable indications from open conduct and truthful speech are favorable to innocence; and so, in effect, the judge stated to the jury.

3. That we direct a new trial without discovering a more-grave error in the charge of the court than the one which I have pointed out, may seem to argue that we are not altogether satisfied with the verdict, on the score of evidence. And it is true, we are not. There is not that full proof of the corpus■ delicti which the circumstances would lead a thoughtful mind to expect. It is a fact, and an unexplained fact, that the owner of the cow was not called to testify. For aught that appears, she may have sold the animal, or given her consent to having her butchered. Who the witness was bearing the owner’s family name, or whether related to the owner or not, is not shown. What concern this witness had with the cow does not appear. The cow may have been lost, as to him, but not as to the owner. Why was not the owner examined or the omission accounted for? Or, if neither, why was not some custody or care of the cow brought home to this or some other witness? Again, the witness above referred to testified that the owner brought the'horn or horns of the cow to his house. Here we have the owner in possession of one or both of the horns. Where and from whom did she get them ? There is no hint that she treated the cow as stolen, or was not satisfied with the way the animal was disposed of, or with the way she herself got the horns. Possibly a few truthful words from her lips would clear up this whole matter.

We think there should be a new trial; and, in view of the evidence in the record, an indictment with more than one count in it would be much safer than the present one, which has but a single count.

Judgment reversed.