Roberts v. State , 1889 Ga. LEXIS 73 ( 1889 )

Blecklet, Chief Justice.

The indictment was for simple larcency, and the goods stolen, as alleged, consisted of “one hundred dollars in greenback bills, of the value of one hundred dollars.” There was no demurrer to the indictment for insufficient description of the hills.

Simple larceny is “the wrongful and fraudulent taking and carrying away by any person of the personal goods of another with intent to steal the same.” Code, §4393. Being found guilty, the accused moved for a new trial on various grounds. ~We will dispose of these grounds by ruling upon all of them which seem material.

1. It was contended that it was erroneous to admit evidence descriptive of the bills stolen, inasmuch as they were not described in the indictment. It may be that the indictment was demurrable by reason of being too general in the matter of description ; but this, we think, should have been taken advantage of by demurrer, and not by objection to the evidence. Certainly the witnesses, if they could testify as to bills at all, could describe them. There is no rule that restricts testimony to the limits of the indictment in describing stolen property. Any description, however minute, which is consistent with the indictment may be given in the testimony.

2. The bills were lost from possession of an agent of the owner, and it is doubtful whether they were lost in certain railroad depot or elsewhere, some of the evidence tending to show that the loss took place in the depot. The accused may have found them in that build-ing, but if he did so it was whilst the agent of the owner was present, to whom he might have restored them instantly if he had not intended to steal them. They had not been placed in the house by design, if they were there' at all, and consequently were not, so to speak, in the protection of the building as a house. Larceny from the house, as defined by the code, §4413, “is the breaking or entering any house with the intent to steal, or after breaking or entering said house, stealing therefrom any money, goods, chattels, wares, merchandise, or any thing or things of value whatever.” If the finding was in the house, the stealing was there also; and though it may have been larceny from the house, we think, under the peculiar circumstances of such a larceny from the house, it was one which included simple larceny. He had already stolen the money before, he left the house, and if he never had left it, the simple larceny would have been- complete.

3. A lengthy request to charge was made, embracing numerous propositions, some of .which perhaps were legal, but certainly others of them were illegal. This being so, the request was properly refused.

41 After defining to the jury in terms of the code, both direct and circumstantial evidence, the court charged as .follows : “The only distinction that the law makes between the two classes of evidence is, that where positive and direct evidence is relied upon, then the jury must he satisfied beyond a reasonable doubt of the guilt of the party. If circumstantial evidence alone is relied upon for conviction, the rule is then .that th.e evidence must go to the extent of satisfying the jury to the exclusion of every other reasonable hypothesis except that of the. guilt of the accused.” The court added in a subsequent part of the charge : “If after you haye gone over all the testimony of the case, and weighed and considered it, there- remains in your minds a reasonable doubt as to whether the.defendant is guilty or not, you ought to give him the benefit of .that doubt and acquit him, hut the doubt must he a reasonable one.” It is plain that the court was not acurate in saying that the only distinction that the law makes between the two classes of evidence is as he states. But we think this inaccuracy did no harm. It was not necessary to charge at all on the distinction; for the court had already properly defined direct and circumstantial evidence; and .'from the definition, the jury could see the distinction which was material for .themselves. We do not quite understand what the court meant by the only distinction, and by stating it in- -the terms above recited; nor have we .any idea that the jury understood this part of the charge. If they thought the court meant that direct evidence must be strong enough to exclude reasonable doubt, and circumstantial-strong enough to exclude reasonable hypothesis, they probably thought hypothesis and doubt both had to -be expelled from the. mind, in a case of circumstantial evidence as this was. ' And they were subsequently told again that if reasonable doubt remained, the benefit of it was to be given -to the accused. The result is, that while we cannot approve the only distinction between the two sorts of evidence as marked out in the charge, because, besides other reasons, we do not. quite understand.it, yet if error at all, we are satisfied it is not reversible error.

5. If the court committed any other error, it was not such as to be hurtful to -the accused. The evidence warranted the verdict, and a new trial was properly re • fused.. Judgment affirmed.