12 Ga. App. 637 | Ga. Ct. App. | 1913
The plaintiff in error was convicted of burglary, and his motion for a new trial, based upon general grounds, and upon a special ground complaining of the court’s refusal to exclude from evidence a pair of “Buzz Saw” shoes, was overruled.
The principle státed in the first headnote is fundamental and controlling; for, as we view the evidence, the circumstances introduced in proof were wholly insufficient to authorize the 'conviction of the accused of the offense of burglary. To say the least of it, the proof pointed just as strongly to his guilt of the offense of receiving stolen goods; and this would have required an acquittal, since the indictment did not contain a charge of receiving stolen goods. The evidence fails to show in what way the store was broken and entered, the prosecutor testifying merely that his store was broken into about three years before. After the store was broken into, it was discovered that a large number of pairs of shoes were missing. The shoes had been taken out, but'the boxes in which they were kept had been left. The prosecutor said that he could not tell when the shoes were taken out of the boxes; they might have been taken out a week or more before the burglary, and he would not have missed them; though he was certain that if they had been removed as much as a month before the burglary he would have discovered the loss. The defendant, according to the testimony of the sheriff, had no certain home. His mother and brother lived about three quarters of a mile from the prosecutor’s store, and he “stayed there some and at other places some.” The sheriff testified that he made efforts to locate the defendant, but “never found him for about two years,” and then found him in Alabama. According to another witness for the State, a few days after the alleged burglary the defendant, who said he was on his way to Kingston, sold a pair of shoes to one Frank Allen for a dollar, fifty cents of which was paid, and the remaining fifty cents was to be paid the next Saturday. The testimony does not show that the defendant had any other shoes than the pair that he sold. These shoes were gotten from Frank Allen by the sheriff, but they had no marks of identification, such as cost or salé marks of any particular dealer, and, according to the testimony, similar “Buzz Saw” shoes were sold by other dealers in the same town, both at wholesale and re^
In any case wholly dependent upon circumstantial proof, where, from the proved facts, two conclusions can with equal ease be reached,—the one of innocence and the other of guilt,—the law requires the jury to -accept and act upon the supposition of innocence, rather than the hypothesis of guilt.
Judgment reversed.