Patterson v. State , 122 Ga. 587 ( 1905 )

Lamar, J.

(After stating the foregoing facts.) 1. The judge is not a mere umpire between contestants. He is the constitutional adviser of the jury as to the law of the case. To that end lie may withdraw from them any instructions which have been improperly given, or, on his own motion and over the objection of either party, he may recall them from their room and give needful instructions on any matter which through oversight was not included in the regular charge. Parker v. Ga. Pac. Co., 83 Ga. 539 (8a). In these cases it is more what he says, than when he says it. It was not error for the judge on his own motion to withdraw from their consideration the law as to an attempt, and to supplement what he had previously said by giving in charge to the jury the law on the subject of simple larceny.

2. The instructions were correct. It has been held that on a trial for larceny from the house the defendant may be convicted of simple larceny, where, as in this case, he was charged with wrongfully, fraudulently, and privately taking the property from the house and carrying it away with intent to steal the same. Brown v. State, 90 Ga. 455.

3. There was no error in overruling the demurrer. The watch was sufficiently described (Powell v. State, 88 Ga. 32; Williams v. State, 25 Ind. 150), and the larceny was properly alleged. The indictment followed the language of the Penal Code, §155.

4. It was charged that the defendant stole “ one double-case silver watch.” The evidence showed that the watch was being repaired, that the works had been taken from the case, and that the defendant removed both the works and the case. It is not necessary to enter into any metaphysical discussion as to how much of the whole had to’ be removed before what was left ceased to be a watch; for in the present instance the defendant took all. Under such evidence there was no variance between the allegata and probata. State v. Samson, 3 Brev. (S. C.) 6 (hot.); Crawford v. State, 94 Ga. 772 (2).

5. The jury having found the defendant guilty of simple larceny, the question of larceny from the house was out of the case. It therefore becomes unnecessary to consider several of the assignments complaining of the ruling of the judge on that subject.

6. The jury had been out for some time, though there was no statement that they- were unlikely to agree. At the end of the supplemental charge, the judge stated that-he disliked to leave the case with them for further consideration, but it “must be decided by a jury.” The. expression of regret was clearly susceptible of the construction that the court would have been glad to relieve them from further service, but, as the issue was a matter which could not be passed upon by a judge, he was obliged to leave it to a jury. There was no'threat that he would detain them until they did agree, and nothing coercive in the language used. White v. Fulton, 68 Ga. 511 (3).

,7. Hudson, one of the acting bailiffs, was not sworn in at the opening of the court. He was offered as a witness for the State during the trial of the case now under review. The jury was in charge of the deputy sheriff, and when they were taken to dinner he requested this bailiff to go with him in attendance upon the jury. It would- have been far better to have selected some person who was not in any way connected with the case to act under these circumstances. The record, however, fails to suggest that the defendant or his counsel were ignorant of the fact that Hudson had not been sworn as a bailiff. It fails to allege that they did not know that he was called upon to assist the deputy sheriff, and it fails to allege that any objection was made to his serving.. From a note of the judge it affirmatively appears that the bailiff was never with the jury except in the presence of the deputy sheriff. There is no hint that any communication took place between him and the jury, and the facts as stated do not demand the grant of a new trial.

8 — 10. The foregoing deals with the assignments of error which were mainly relied on in the argument here. It is not necessary to consider at length the other points made by the record and insisted upon in the brief. The failure to put officers of court under the rule, and permitting the State’s counsel to ask a leading • question, were matters within the discretion of the trial judge, and this court will not for that reason grant a new trial, unless it be made to appear that there has been an abuse of discretion. Nor was there error in refusing to grant a mistrial because of the argument of the solicitor-general. Whether it was sound or unsound, it was within the limits of debate, and not within the rule prohibiting the counsel from making statements of prejudicial matters which were not in evidence. Civil Code, § 4419. The charge as to the effect of the defendant’s taking the watch under a bona fide claim was correct, and so far covered that point as to make it unnecessary to give the requested charge on the same subject. Nor did the fact that the court received the verdict in ignorance that one of the jurors had stopped in the closet furnish ground for declaring a mistrial or refusal to receive the verdict. Within a moment after the verdict was read the attention of the judge was called to the absence of one juror. He almost immediately took his seat, and the verdict was again read and properly received. The evidence as to the ownership of the personal property and the possession of the house sustained the allegations. The testimony warranted the verdict; and no cause having been shown why a new trial should be granted, the judgment is

Affirmed.

All the Justices concur.