57 Ga. App. 182 | Ga. Ct. App. | 1938
Lead Opinion
The defendant was indicted and convicted for the larceny of a certain described hog. The entire evidence was circumstantial, and, as such, did not sufficiently show that the hog described in the indictment had been stolen, or, if so, that the hog found in the possession of the defendant was that hog. While it may be gathered from the testimony of the prosecutor that the hog found in the possession of the defendant was one belonging to him, yet his identification of the hog as the one alleged in the indictment as having been stolen was not satisfactory. In fact, taking his testimony as a whole and construing it in favor of the defendant, it states a reasonable hypothesis of the innocence of the defendant of the crime charged, to wit, that the hog found in the defendant’s possession was not the hog described in the indictment. This being true, the judge erred in overruling the motion for new trial on the general grounds. See Carter v. State, 57 Ga. App. 180 (194 S. E. 842).
Judgment reversed.
Dissenting Opinion
dissenting. I think that the evidence authorized the jury to find that the hog found in the defendant’s possession belonged to the prosecutor, and that it was the hog described in the indictment. See Holmes v. State, 20 Ga. App. 181 (92 S. E. 963).
