Shannon v. State , 57 Ga. 482 ( 1876 )

Warner, Chief Justice.

The defendant was indicted for the offense of “setting fire to a house in town,” and on the trial therefor, was found guilty by the jury, with a recommendation that he be imprisoned for life. A motion was made for a new trial, on the ground that the verdict was contrary to law, contrary to the evidence, and without evidence to support it; which motion was overruled by the court and the defendant excepted.

1. The main evidence relied on to connect the defendant with the offense charged, was the fact that certain tracks were discovered near the house set on fire, the next morning thereafter, which were measured but not identified as the tracks of any particular individual. A day or two afterwards, the defendant’s tracks, as he made them in a public street, were measured, and the size thereof compared with the tracks found near the house set on fire. There were' some other slight circumstances offered in evidence to1 show the defendant might be guilty of the offense charged, not, however, inconsistent with his innocence, but unless the tracks found near the house set on fire the next morning thereafter were made by the defendant, the verdict cannot be sustained. How is that fact sought to be established ? It is sought to be established by a comparison of the size of the tracks found near the house set on fire with the size of the tracks made by the defendant in a public street a day or two afterwards. The prosecutor, who. measured the tracks found near the house, states that each one measured eleven inches in length from heel to toe, and three and one-fourth in width across the broadest part of it; that he measured the impression on the ground made by the sole only, both length and width. A witness who measured defendant’s track states that it measured ten and three-quarter inches long, and between three and one-eighth and three and one-quarter inches wide; measured his shoes, ten and a half inches long and three and one-quarter inches across.

The defendant may be guilty, but there is not sufficient evidence to authorize his conviction under the law, for it will not do to find a defendant guilty of an offense, and imprison him for life, on suspicion that he is guilty. This case comes within the ruling of this court in McDaniel vs. The State, 53 Georgia Reports, 253, and Earp vs. The State, 50 Ibid., 513.

2. Besides, in this case, the motion for a new trial was not overruled by the judge who presided at the trial, so that we have not the-weight of the opinion of the judge who did preside at the trial in favor of the verdict.

Let the judgment of the court below be reversed.