Hall v. State , 34 Ga. 208 ( 1865 )

Ltost, J.

Ought the Court below to have granted a new trial? We think it ought. The rejection of the testimony of Kent, offered by defendant, that immediately after the fact was ascertained that the steer sent off with Harrell was probably branded with a K, or was the property of Kent, Hall came to him and said if it was Kent’s,' he had made a mistake, and proposed, and did actually pay him the amount of money for which the steer sold,” was clearly erroneous, and a new trial ought to have been granted on account of its rejection.

The theory of defendant’s defence was, that if it was true that the steer he had sent off and sold as his own, was, in fact, Kent’s, and not his, he did so by mistake, believing it to be his own, and not with any intent to steal; and in support of this idea, he proved by Mr. Jones that he did have a small white steer, with red specks on the neck, in Hall’s mark and brand, that stayed about the premises of witness some two months' and then disappeared, and that he saw the same steer in about one month afterwards, with both ears off; or one that he took to be the same steer. Miss Hall swore that her father did have a white steer, with red specks about his neck, and both ears bitten off. Humphries testified that he saw the steer when it was delivered by Hall to Harrell, and that he could see no brand, and believed none could be seen. Harrell, who earned off and sold for Hall, could see no brand when the animal was delivered, but subsequently, after shedding its hair, he discovered a very indistinct brand, which he took to be the letter K. All this evidence, if true — and of that we can know nothing — goes far, very far, to establish, if the steer did in fact belong to Kent, and not to Hall, a want of intent to steal, but that the taking was such a mistake as the very best of men might ‘make. So strongly does the evidence so impress us, that we think we should have granted a new trial on the ground that the verdict .was against the evidence, if we were not compelled to grant the motion for error in the rejection of the proposed testimony of Kent.

What the objection is, or was, to this testimony, we cannot see. It was precisely what the balance of the defendant’s evidence indicated. Hall did not follow the steer to market; when it left him, no brand was ; visible and its appearance and marks, in every other respect, answered to his own. Subsequently, the brand makes its appearance that, alone, identifies the animal as the property of Kent. When the person having the steer in charge reports this fact to Hall, he promptly repairs to Kent, states the fact, and says if it is true, he made a, mistake in sending him off, and pays to him the money that be otherwise would have received himself — just what any honest man would have done under similar circumstances, and precisely what, if he had not done, would have been justly used against him as the strongest evidence of an intent to steal the steer, then why should he not have the benefit of the fact? We can see no reason for its exclusion. If he made a mistake, and honestly corrected it, he is not guilty of stealing. If, on the contrary, he knew the steer was not his, and he made this statement and offer when his crime was discovered, for the purpose of avoiding the effect, it amounts to nothing; but of all this the jury must judge, and they can only do so, correctly, by hearing all the facts.