Newsome v. State , 78 Ga. App. 332 ( 1948 )

1. In the instant case, the trial judge charged the jury sufficiently on the contentions of the parties. He charged fully on reasonable doubt, the presumption of innocence, and circumstantial evidence. He also charged the jury on the necessity for criminal intent on the part of the defendant. Considering the charge as a whole, it is not error, in the absence of request, that he failed to charge more fully on the theory of the defense that the accused was acting as agent for his son-in-law in hauling hogs on the occasion when he was charged with hog stealing.

2. The trial judge read to the jury in his charge the section of the Code designating hog stealing as simple larceny, and also the Code section prescribing the punishment for this offense. The indictment fully charges the crime of simple larceny as to all its elements, and the judge instructed the jury with reference to the offense charged in the bill of indictment. This was in the instant case, in the absence of a request, a sufficient definition of the crime.

3. Where the verdict is supported by some evidence and is approved by the trial court, this court is without authority to interfere. See many cases cited under catchword "Approval," Code (Ann.) § 70-202.

DECIDED DECEMBER 3, 1948. REHEARING DENIED DECEMBER 15, 1948. Luther T. Newsome, hereinafter referred to as the defendant, was indicted, tried, and convicted in the Superior Court of Screven County for hog stealing. Construing the evidence in its light most favorable to support the verdict, the jury trying the case was authorized to find facts substantially as follows: that the prosecutor, B. L. Lanier, an elderly negro, lived on land adjoining that of the defendant; that he owned the hogs described in the bill of indictment; that these hogs are described in the bill of indictment minutely as to approximate weight, sex, color, and ear marks; that the prosecutor missed his hogs for two or three days, and then discovered them in the field of the defendant; that the prosecutor thereupon called to the attention of the defendant the fact that his hogs were in the defendant's field; that the defendant stated that the gate had been left open so that his stock could get to water and made no objection to the hogs of the prosecutor using his field; that the prosecutor assured the defendant that, if he wanted the hogs kept out of the field, he would put them up; that after the elapse of about one week or ten days the prosecutor's hogs together with the stock of the defendant disappeared from this field; that the prosecutor spoke to the defendant about this, and the defendant stated that all the stock was using a swamp nearby; that, being unable to locate his hogs, the prosecutor became suspicious and tried to get someone to take him to the stockyards at Statesboro; that on the next day, which was the day after sale day at the stockyards and within a few days after the prosecutor's hogs disappeared from the defendant's field, the prosecutor procured a white man who was a deputy sheriff to go to Statesboro with him; that en route the prosecutor described his hogs to the officer as to the minutest details and in accordance with the description contained in the bill of indictment; that upon reaching the stockyards the defendant found and identified as his own part of the hogs described in the bill of indictment; that in a possessory-warrant proceeding in Statesboro the defendant admitted taking these hogs to the stockyards; that the defendant knew the prosecutor's hogs and could have identified them as readily as the prosecutor himself.

The defendant made a statement, in which he denied that he had taken the hogs of the prosecutor to the stockyards, but said that he did take two truck loads of hogs there at the time in question; that the hogs he took belonged to his son-in-law, Hugh Strickland; that he took these hogs to the stockyards at the request of Strickland, who paid him for this service. He stated substantially that the prosecutor did not own any hogs which compared to those described in the bill of indictment.

Hugh Strickland testified for the defendant that he employed the defendant to take his hogs to the stockyards, that he was not at home when the hogs were taken, and that he did not authorize the defendant to take any hogs belonging to the prosecutor, and did not know whether the defendant hauled hogs to Statesboro belonging to the prosecutor or not.

The jury returned a verdict of guilty, fixing the punishment at not less than 2 or more than 4 years in the penitentiary, and a sentence was accordingly imposed.

The defendant filed a motion for a new trial based on the general grounds, which was later amended by adding two special grounds.

On the hearing the trial judge overruled the defendant's motion for a new trial, and this judgment is assigned as error. 1. Special ground 1 complains that the trial court erred in failing to charge the jury without request on the theory of the accused to the effect that, on the occasion in question, if the defendant was acting as agent for his son-in-law and hauling hogs for him which he believed to be the property of his son-in-law, he would not be guilty of the offense charged in the indictment.

The trial judge charged the jury to the effect that the grand jury had returned a true bill of indictment against the defendant, in which he was charged with the offense of simple larceny, that is, hog stealing; and that to this charge the defendant had entered a plea of not guilty; and that the charge and the plea constituted the issue which the jury was called upon to try. In the absence of a request, this is a sufficient charge as to the contentions of the parties. See Parks v. State,24 Ga. App. 243 (100 S.E. 724). It is contended, however, that by this omission the judge failed to instruct the jury as to the defense of the accused. He charged fully on reasonable doubt, the presumption of innocence, and circumstantial evidence. He also charged the jury on the necessity for criminal intent on the part of the defendant. Considering the charge as a whole, it was not error, in the absence of request, to fail to charge more fully on the theory of the defense that the accused was acting as agent for his son-in-law in hauling hogs on the occasion when he was charged with hog stealing. This ground of the amended motion for new trial fails to show reversible error.

2. Special ground 2 contends that the trial judge erred in failing to define in his charge the offense of simple larceny. The judge read to the jury the section of the Code designating hog stealing as simple larceny and also the Code section prescribing the punishment for this offense. The indictment fully charges the crime of simple larceny as to all its elements, and the judge instructed the jury with reference to the offensecharged in the bill of indictment. In Carter v. State,171 Ga. 406, 414 (5) (155 S.E. 670), the following was held: "The judge charged the jury as follows: ``Now, if you find and believe that the defendant did, in this county, at any time prior to the filing of this indictment, with the weapon named in this bill of indictment, and with malice aforethought, either express or implied, kill Mary Austin, as charged in this indictment, then you would be authorized and it would be your duty to convict the defendant of the offense of murder.' The exceptions are that this instruction is not the law; that one may slay another with malice and not be guilty of murder; that said charge was practically a direction by the court to the jury to find the defendant guilty of murder; and that the court should have charged in connection therewith that the defendant would be guilty only in the absence of mitigating circumstances or justification. . . If the instruction complained of had informed the jury that they should convict the accused if he killed the deceased with malice, and had gone no further, such instruction would have been open to the attack made upon it; but the judge went further and told the jury that if the defendant with malice aforethought killed the deceased ``as charged in the indictment,' then it would be their duty to convict the defendant of murder. The indictment charged that the defendant unlawfully, feloniously, and with malice aforethought killed the deceased. The charge complained of in effect instructed the jury that if the killing was unlawful, felonious, and with malice, they should ``find the defendant guilty of murder,' but did not tell the jury that they should convict him if the proof showed only malicious killing. One can not kill another unlawfully, feloniously, and maliciously and not be guilty of murder. Taken as a whole, this instruction amounted to this, and no more, so was not open to the above grounds of exception taken." In view of the principle of law laid down in the Carter case, and taking into consideration the whole charge of the court in the instant case, the crime of simple larceny was, in the absence of request, sufficiently defined.

3. Where the verdict is supported by some evidence, as here, and is approved by the trial court, this court is without authority to interfere. See many cases cited under catchword "Approval," Code (Ann.) § 70-202.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.