79 Ga. 564 | Ga. | 1888
Causey was tried for stealing a bell. He had been driving a milk-wagon for Mr. Gunn, in the city of Macon, and had bought á bell to be used in warning or attracting customers ; and upon being discharged by Mr. Gunn, had left his bell. He found other employment, and Mr. Gunn engaged a successor to him in driving the milk-wagon, and the bell was turned over to his successor, who used it for sometime. On one occasion, he left his wagon in a public street in Macon, and Causey went to the wagon to get his bell. Not finding the driver there, he took up the bell and rang it loudly for sometime, perhaps a minute. No one came, and Causey turned to a bystander whom he knew (there were several persons present) and requested him to tell the driver when he came that he had taken his bell. The message was not delivered,'because the person to whom it was committed failed to remember it; and the new driver prosecuted Causey for stealing the bell. He was tried in the city court without a jury; the judge found him guilty and sentenced him to a punishment for the offence as a misdemeanor. He made a motion for a new trial, on the ground that the conviction was contrary to law and without sufficient evidence; and the motion was denied.
In the argument of the case here, the solicitor-general representing the State conceded that a new trial ought to be granted, and we agree with him that, taking all the facts and circumstances together, there is a fair presumption that Causey acted under a bona -fide claim of right.
The evidence was pretty decided that he had left the bell as the property of Mr. Gunn, his employer, and that Mr. Gunn had accounted to him for the purchase of the bell in settling their accounts for milk money. The real question was, whether that accounting took place. Causey, at the trial, had a book kept in his way, in which he stated he entered his receipts and payments, and he submitted that book. It seems not to have been very intelli
As to claim of right, see 1 Hale P. C. 509; 2 Russ. Cr. 163; 2 Arch. Cr. Pl. & Pr. 1183 ; 1 Whar. Cr. L. 884; 1 Bish. Cr. L. §884; 1 Bish. Cr. L. §297; 2 Id. §851.
As to open taking, see 1 Hale P. C. 509; 2 Russell on Cr. 158; 2 East’s P. C. 661; 2 Bishop’s Cr. Law, §842, n. 1; 2 Archbold’s Cr. Pl. & Pr. 1183, n. 1.
Judgmept reverse^.