Wood v. State , 25 Ga. App. 479 ( 1920 )

Broyles, C. J.

The evidence relied upon to convict the defendant was circumstantial and was not sufficient to exclude every reasonable hypothesis save that of his guilt. On the contrary, it was consistent with the theory of his innocence. The court therefore erred in overruling the motion for a new trial.

Judgment reversed,

Luke and Bloodworth, JJ., concur.

It was testified that on the night on which the cotton was stolen there was a carnival in the town of Social Circle, which was “ three or four miles from Lillious’s house and about the same 'distance from Mr. Bailey’s house,” and that Lillious Wood and his wife “came in” and were at the carnival between 11 and 12 o’clock that night. Another witness testified that he saw Lillious Wood “ about the middle of the evening,” driving a horse to a buggy, past the house of the witness, a mile from Lillious’s place. Eli Pritchard testified that he was a prisoner in the jail with Lillious Wood and the other defendants charged with the larceny of the cotton and “heard them make a conspiracy to put the crime on Bob Cobb and to clear Lillious Wood, and say that Bob Cobb told them to go and get the cotton and bring it to Lillious’s house,” and that if this could be done, Lillious would pay the rest out of jail. The statements of this witness were denied by Lillous Wood in his statement at the trial, and by the other defendants who testified. Wood denied that he had any connection with the crime, and his statement accorded substantially with that of the other defendants as to what occurred when the cotton was brought to his home. -He said that when he told them to take it away, they “went off down in the woods somewhere,” and he did not know, where they carried it.

It was contended on the part of the accused that there was not sufficient evidence to authorize a conviction on either count of the indictment, and that the verdict finding him guilty on both counts was inconsistent and void; and on the latter proposition his counsel cited: 128 Mass. 60; 104 Ill. 565; 1 Bish. Crim. Proc. (2d ed.), chap. 30, sec. 7; 16 Corpus Juris, see. 2596, subhead 5, note 36 A. Cited contra: 21 Ga. App. 328 (2).

Frank D. Pierson, George F. Fielding, for plaintiff in error. W. O. Dean, solicitor-general, contra.