28 Ga. App. 571 | Ga. Ct. App. | 1922
Lead Opinion
1. The alleged newly discovered evidence is merely cumulative and impeaching and is not of such a character as would probably cause a different verdict upon another trial of the case.
2. There is no substantial merit in the complaint that the judge (in the absence of any request to do so) failed to instruct the jury upon the sole issue raised by the defend'ant upon the trial, to wit, that he had no intention of committing the crime charged (larceny from the house), “ because he purchased the goods alleged in said indictment from the prosecutor, J. L. Goldman, in good faith, by the said Goldman extending to him (this movant) credit for the price of said goods until this defendant sold his cotton, and was then to pay for the goods.” The court did charge the jury that if the defendant entered the prosecutor’s store-house, and, after so entering, did fraudulently and privately take and carry away therefrom any of the articles mentioned in the indictment, with intent to steal the same, he would be guilty as charged. This reference to the defendant’s intent to steal was sufficient, in the absence of a request for a fuller charge upon that subject. The facts of this case easily distinguish it from Glaze v. State, 2 Ga. App. 704 (58 S. E. 1126), relied on by counsel for the plaintiff in error.
3. The case against the defendant was exceedingly weak, but the verdict is supported by some evidence, and, the finding of the jury having been approved by the trial judge, this court is powerless to interfere.
Judgment affirmed.
in error: 9 Ga. App. 227; 2 Ga. App. 704; 1 Ga. App. 535 (6).
Dissenting Opinion
dissenting. I think that the analogy between this case and that of Glaze v. State, supra, is so striking that the principle announced in that case must control in this, and that the failure of the court to charge more specifically on the question of intent was such an error as requires the grant of a new trial.