Blumenthal v. State

Lamar, J.

There is a difference between fact and evidence tending to establish a fact, though it may not be possible to lay down any rule by which the line separating the two may be distinguished in determining the power of the judge to refer thereto. It has been held that the judge need not confine himself to the abstract, but may instruct the jury with reference to the concrete. Penniman v. State, 58 Ga. 336. To that end, and for the purpose of making a helpful charge, he may define what are the constituent elements of the offense named in the indictment, and thereupon instruct the jury that if they find from the evidence that facts constituting these named elements have been established beyond a reasonable doubt, they may return a verdict of guilty. But the Civil Code, § 4334, prohibits the use of any language which even intimates the court’s opinion as to what has or has not been proved as to these elements or by them. In the present case, after charging in general terms what were the elements of the offense, and what class of circumstances might be considered, the judge might have told the jury that they could consider the character of the articles pawned, and the sex of the person offering them. But he went from the general to the particular, and charged: “In this case the articles pawned were pants, and the parties pawning them were negro girls. You can consider whether negro girls wear pants. These are some of the circumstances whieh you should consider in determining the guilty knowledge of the defendant.” The very force and pertinence of the intimation requires the grant of a new trial. Moody v. State, 114 Ga. 449 ; Rawls v. State, 97 Ga. 187 ; Davis v. State, 91 Ga. 167 (2); Bradley v. State, 121 Ga. 201.

It is very clear that the jury could not have been misled by the charge that the State need not prove that the defendant knew that the goods were stolen. The context and the succeeding sentence showed that the court meant only that positive and direct evidence of such knowledge need not be adduced, but that it taight be inferred from the circumstances. The judge then.proceeded to enumerate what might be considered by the jury in determining this question. His charge is supported not only by the absolute necessity in such cases, and the utter impossibility of making out a case without relying on circumstantial evidence, but also by the express ruling in Cobb v. State, 76 Ga. 654.

Judgment reversed.

All tile Justices concur.