| Ga. | Nov 8, 1906
The indictment charged the accused with the offense of "burglary, for that he did feloniously and burglariously break and ■enter the dwelling-houseTff Jim Scrutehins with intent to commit a larceny, and did steal and carry away therefrom sixteen dollars in money, the property of Jim Scrutehins and of the value of sixteen -dollars, then and there being found. The accused demurred to the indictment on the ground that it charged him “with two distinct ■offenses of an entirely different nature in one and the same count.” 'The demurrer was overruled, the trial resulted in a verdict of guilty •of the Charge of burglary, and the court declined to grant the accused a new trial.
1. On the argument here, counsel for the plaintiff in error explained that his contention was that the indictment set forth in one count not onty a charge of burglary, but also the charge that the accused had committed the statutory offense of larceny from the house. With the merits of this contention we can not undertake to deal, for the reason that the demurrer does not set forth what “two distinct offenses of an entirely different nature” the accused sought to insist were included in one and the same count,
2. Complaint was made in the motion for a new trial that the court erred in admitting proof that a certain scarf pin was,, shortly after the burglary, picked up within a few feet of the door of the-house alleged to have been burglariously entered, proof not having first been made that the pin was ever in the possession of the accused. He was indicted under the name of Henry Field, and all the witnesses who professed to know him either called him by that-name or referred to him as the person on trial. A witness who did not undertake to state whether or not he was acquainted with the accused testified that just before the house was broken into he saw “ Son” Field with a pin precisely like that found after the burglary. This witness did not identify the accused as the person who had been seen wearing the pin, nor state that the accused was ever called or was known as “Son” Field. This was the only testimony offered by the State for the purpose of connecting the accused with the pin picked up at the scene of the crime. Obviously the State-failed to lay the proper foundation for the introduction of the evidence objected to, and it should for this reason have been excluded.
3. It appears that the testimony of another witness, concerning the finding of tracks leading from the burglarized house, was objected to by the accused, but in his motion for a new trial he fails to state what objections were urged against the admission of this-testimony at the time it was offered; so we can not undertake to say whether the court below did or did not err in admitting it.
4. In his charge to the jury the presiding judge gave them this'instruction: “When you go to make your verdict in this case, don’t view -the evidence in detached portions, but take the whole of it, along with such part or parts of the statement, if you believe any of it, if none, discard it entirely, if any, say how much, take it along with the evidence and determine what the truth is.” The-plaintiff in error insists that this instruction contained an unguarded expression of doubt on the part of the court as to there being any truth at all in the defendant’s statement. After expressly cautioning the jury not to view the evidence in detached portions, his honor used language which might have been understood as conveying the idea that the prisoner’s statement need not
5. The court correctly informed the jury that the defense of alibi, interposed by the accused, involved “the impossibility of his being at the scene of the alleged crime.” Penal Code, § 992. To so charge did not impose upon the accused the burden of showing more than that he was not present at the scene of the crime at the time of its alleged commission, nor could the jury have understood to the contrary, because the court added: “In other words, he contends that he is not guilty because of the fact that he was not at the scene of the alleged crime.” As to the contention of the accused that none of the witnesses introduced to sustain his defense had been in any wise contradicted or impeachecL, and therefore there was no evidence which authorized the court to charge the jury upon the assumption that they might find, this defense was false, we need only say that there was testimony offered by the State which tended to discredit the statements of these witnesses as to how the accused was dressed and where he had been seen during the day on which the burglary was committed.
6. The only other criticism made on the charge of the court is that he instructed the jury that “reasonable and moral certainty is what the law requires to authorize a conviction,” which instruction was erroneous because the court did not include therein a statement to the effect that such certainty must arise out of the evidence delivered from the witness stand. The charge excepted to was in and of itself a complete and correct exposition of the law, and was not objectionable because the court did not, in charging as
Judgment reversed.