Tarver v. State , 95 Ga. 222 ( 1894 )

Lumpkin, Justice.

1. The object of arraigning a prisoner is to give him an opportunity to plead to the indictment. If he waives arraignment, there is no further occasion to call upon him to plead; and certainly where, after the arraignment has been waived, the solicitor-general enters upon the indictment a plea of'not guilty, no possible harm is done to the accused, and the issue between him and the State is duly made up. The point raised by the accused in this case, with which we have thus summarily dealt, is absolutely without merit.

2. In arriving at a conclusion in a criminal case, it is the duty of the jury to consider the evidence and the statement of the accused, giving to the latter just such weight as they see proper. After doing this, they must be satisfied beyond a reasonable doubt of the guilt of the accused before they can legally convict. Instructions to the jury conforming to the propositions just announced, if not absolutely proper and correct, certainly are not erroneous as against the accused.

3. The evidence showed with sufficient clearness that the house was broken. Accordingly, there was no error in refusing to charge upon the offense of larceny from the house. The accused could not, under the facts, possibly be guilty of the latter offense without also being guilty of the burglary, and therefore no conviction of the lesser offense would have been lawful. In cases of larceny, the value of the goods stolen must be alleged and proved; but in an indictment for burglary, alleging that the accused broke and entered the house in question with intent to commit a larceny of certain described goods therein, it is unnecessary to allege their value; and although the value is not alleged, it may be proved at the trial as a part of the description of the goods which had been in the'house and which were afterwards found in the possesson of the accused. In this case, proof of value also bore materially upon the account given by the accused of his possession of the goods. It tended to show that this account was false, because, according to what he said, he obtained them at so much less than their real value, his statement that he purchased them might well be doubted.

4. Nevertheless, that statement, if true, was consistent with his innocence, and he was entitled to have the jury pass upon the explanation given by him of his possession. It was for them to determine whether or not that explanation was reasonable and satisfactory. The court, in substance, instructed the jury that the fact of the possession of the stolen goods might, in connection with the other facts in evidence, authorize a conviction. A careful examination of the record before us shows that the evidence upon which the State mainly relied, and without which there could have been no legal conviction, consisted of proof of possession by the accused of the goods which had been stolen from the broken house. Under these circumstances, the merits of his explanation ought to have been submitted to and passed upon by the jury.

In charging with reference to the possession of stolen goods as evidence of criminality, the question as to how much time had elapsed between the theft and the possession ought also to be considered. As stated in Young et al. v. The State (post), decided October 15,1894, the court, in charging in this connection, should use the word “recent,” though it was there held that the omission to do so was not cause for a new trial where it affirmatively and unequivocally appeared that the possession in question was in fact a recent one. Still, we do not think that in cases of this kind the court should ever neglect to refer to the element of recency, and in such cases the charge should conform to the rules stated in the fourth head-note, which are sufficiently plain without further comment. "We grant a new trial in this case because of the error therein indicated.

5. Some other minor questions were presented by the motion for a new trial, but none of them are of sufficient importance to require discussion.

Judgment reversed.