Cornwall v. State

91 Ga. 277 | Ga. | 1893

Bleckley, Chief Justice.

Tbe storehouse of J. D. Anchors was entered burglariously at night, his safe blown open, and money to the-amount of about $225.00 was stolen therefrom. This money was mostly in silver; probably a small amount of it was gold; perhaps some was paper; all of it being-contained in a small sack which is designated in' the-evidence as a shot sack. The commission of the burglai’y by some one was put by the evidence beyond question. The only real problem which the jury had to solve was whether Cornwall was the burglar or one-of the burglars. The motion for a new trial complains-of the admission of certain evidence, the charge of the court, refusal to charge as requested, disqualification of one of the jurors, separation and misconduct of the jury, and misconduct of the bailiff who had the jury in. charge. It complains also of the verdict as being unwarranted by the evidence, contrary to the same, contrary to law, etc. The motion was overruled.

1. The shot sack was found in Cornwall’s possession four days after the burglary. It was empty. Its admission in evidénce was objected to because it was not sufficiently identified, and it was contended that if admissible at all it should have come in “only as a circumstance” and not as stolen property. An examination of the evidence satisfies us that it was identified with sufficient certainty. On principles both of law and common sense it was admissible as evidence tending to connect Cornwall with the burglary, although the sack was empty when it was found on his person. Certain implements, such as drills, were found in his possession at the same time. They were new and had the appearance of never having been used, but the evidence showed they were adapted to use in opening safes as well as in other mechanical work. One of the witnesses had seen similar tools used for getting into safes. Cornwall professed to be a traveling mechanic engaged, when he could get employment, as a marble cutter. Moreover there was evidence of his admission that he had concealed the tools used in committing this burglary. If he had done so, this might account for the purchase of a new set, as parting with the old ones would likely give occasion to procure a new outfit, whether he designed to commit more burglaries or simply to ply his vocation as a marble cutter.

2. It was contended that a small shot bag made of cloth was such a trifle and of so little value as not to be on the footing of stolen property with reference to accounting for the recent possession of it after the crime was committed. The court took a different view, and in so doing was correct. It is not solely the element of value which gives probative force to the possession •of an article of property which, disappeared when a ■crime was committed. The main consideration is that the possession must have had some origin, and as it could have originated by committing the crime, there is, •or may be, some presumption, though often very slight, of its having so originated unless a different origin appears to be probable; and inasmuch as the person having the possession best knows how his possession did in fact originate, and has the best means of accounting for it, it is reasonable and proper that the burden of so •doing should rest upon him. If any inanimate thing be at a particular place and shortly thereafter is found in the possession of some one at a different place, that he was the person who removed it, unless a different agent is pointed to, is in some degree probable. Here, on the 20th of January, 1891, a small shot sack was in a certain safe locked up in a storehouse situated in the •county of Jones, and four days thereafter the same article was found in the possession of Cornwall in the city of Savannah, in the county of Chatham. Why ■should there not be some accounting for .this removal and change of possession by Cornwall, no matter whether the sack was of much or little value or of no value at all ?

3, 4. The admissions in the nature of a confession made by Cornwall to the detective were competent evidence notwithstanding they were obtained by artifice, trick or deception, and they could be considered by the jury. The means used to obtain them did not prevent them from being free and voluntary. Doubtless Cornwall was misled and deceived as to the detective being his friend and in sympathy with any effort he might make to effect his escape from custody. But the hope and beliéf that he had found a friend would not render it the least probable that an admission or confession made to the supposed friend was untrue; and the reason why confessions made under the influence of hope are excluded is the danger of their being false. The detective made no suggestion that he would aid in effecting an escape, nor did he suggest the making of any admission or confession. What he said and did is fairly indicated in the third head-note. He sealed his pretended friendship by handing Cornwall two dollars, and thereupon the latter said, “Now I will talk to you,” and proceeded thus: “These are new tools: they are not ■the tools I was using — they are buried underneath some old cross-ties at the Central railroad wharf. Yes I can And the place. ... I told that big son of a bitch to throw that bag away, and he didn’t do it. Those fellows treated me damned mean. They might have gone to a lawyer and got me out for a few dollars.” All this is pregnant with the implication that Cornwall participated in the burglary. The confession was indirect rather' than direct, but certainly this would not render it inadmissible.

5, 6. The court charged as set out in the head-notes 5 and 6. Applied to the facts and circumstances of the particular ease, we consider these instructions as substantially correct. None of the witnesses were impeached by evidence introduced for that purpose. We think there is a prima facie presumption that all witnesses not impeached tell the truth, and that there is no presumption one way or the other respecting the truth of the prisoner’s statement. Upon the truth of that the jury are to pass unaided by any preliminary presumption for of against him. The charge was correct on direct and circumstantial evidence and on reasonable doubt.

7. It was not accurate to charge the jury as set out in the 7th head-note. It is never incumbent on the accused to show that he obtained stolen articles honestly and legally. A guilty mode of acquiring them will be as effectual as an innocent one. Their acquisition by any means whatever other than by participating in the offence involved in the trial, will be a sufficient accounting for the possession to neutralize the effect of that possession as evidence tending to prove guilt. Furthermore, the proposition “ you would be authoi’ized to find him guilty on that proof” should have been qualified by adding something to this effect: provided under all the circumstances in evidence your minds are satisfied beyond a reasonable doubt of his guilt. In view, however, of instructions given in other parts of the charge, and as the evidence .taken as a whole shows beyond any reasonable doubt that the verdict was correct, the inaccuracy in this part of the charge may be treated as affording no cause for a new trial. Why should a conviction which was undoubtedly right and proper in itself be set aside on a verbal criticism of the court’s charge. The possession of the shot sack was not only unaccounted for, but the prisoner virtually admitted that he obtained it by reason of his connection with this burglary and not otherwise.

8-12. The remaining points are left to ^ stand on the head-notes. Judgment affirmed.