McNabb v. State

Bloodworth, J.

J. H. McNabb was charged in the first count of an indictment with carrying a pistol concealed, and in the second count with carrying it without a license. He was convicted on both counts, and made a motion for a new trial, which was overruled, and he excepted.

The only special ground of the motion for a new trial is that “the court failed to give in charge to the jury the law as applicable to circumstantial evidence.” The evidence of the State was that the defendant, while running from an officer, was trying to throw something away, and that after the defendant was caught the officer went back to where he, the defendant, fell, and found a pistol; but no witness swore that he saw the pistol in the possession of the defendant. The evidence as to the defendant being in possession of the pistol was wholly circumstantial, and, therefore, the failure to charge the jury on the law of circumstantial evidence was error requiring the grant of a new trial. Harris v. State, 18 Ga. App. 710 (90 S. E. 370); Guest v. State, 39 Ga. App. 137 (146 S. E. 349).

Judgment reversed.

Broyles, G. J., and Luhe, J., concur.