Wright v. State , 121 Ga. App. 21 ( 1970 )

121 Ga. App. 21 (1970) 172 S.E.2d 457

WRIGHT
v.
THE STATE.

44662.

Court of Appeals of Georgia.

Argued September 8, 1969. Decided January 15, 1970.

Hatcher, Meyerson, Oxford & Irvin, Paul E. Pressley, for appellant.

Richard Bell, District Attorney, for appellee.

JORDAN, Presiding Judge.

Where the offense charged is larceny of a pistol, and the guilt of the accused is wholly dependent on an inference arising from his possession of the property recently stolen, and the testimony of the accused explaining his possession is entirely consistent with his innocence and in no way inconsistent with the perpetration of the offense by someone else, including numerous persons who had access to the key to the locked cabinet in which the pistol was stored, but not including the accused, as shown by his testimony and corroborated by a witness for the State, and no basis whatsoever appears to enable a jury to discredit the accused's testimony, the inference, in view of the explanation, is insufficient as a matter of law to support the conviction. Accordingly, the trial judge erred in overruling the general grounds of the motion for a new trial. Code § 38-109, 38-110; Jackson v. State, 33 Ga. App. 700 (127 SE 622); Willis v. State, 33 Ga. App. 352 (126 SE 303); Denson v. State, 26 Ga. App. 427 (106 SE 732); Slaughter v. State, 24 Ga. App. 428 (100 SE 774); Gibbs v. State, 8 Ga. App. 107 (68 SE 742); Hampton v. State, 6 Ga. App. 778 (65 SE 816); Peeples v. State, 5 Ga. App. 706 (63 SE 719); Williams v. State, 125 Ga. 268 (54 SE 166).

Judgment reversed. Hall and Whitman, JJ., concur.