2 Ga. App. 704 | Ga. Ct. App. | 1907
Plaintiff in error was convicted of the offense of larceny from the house. The evidence showed, that Glaze went-into the store of A. E. Luke, in the presence of a clerk and of a, customer who was at that time being waited upon by the clerk, and that he claimed to want to buy a gun. The clerk was busy waiting on the other customer, and Glaze, while in plain view of the clerk, went to the gun-rack and took down the gun alleged to have been stolen, and began to examine it, simultaneously speaking to the clerk, who was also the brother of the prosecutor. The
The accusation alleged, that “Alex. Glaze on the 20th day of October, in the year 1900, . . did . . , unlawfully and with force and arms, the house, to wit the storehouse, of E. A.
Whether the accusation, therefore, be construed as based upon §178, or upon §182 of the Penal Code, the State relied for conviction solely upon proof that the defendant, after having entered the store, formed the intent to steal; and upon the sole .charge that the gun was carried away with the intent to steal the same. The distance of the asportation would make no difference, if the defendant in carrying away the gun intended to steal it. That he dropped the gun instead of carrying it with him would afford him no excuse or defense, if, before he dropped it, he had intended to steal it. The intention of the defendant, therefore, becomes a matter of paramount importance to be considered by the jury. If the jury should find that he carried the gun out of the store with the intent to steal it, he would be guilty. If, on the contrary, the evidence does not establish this fact, the defendant should be acquitted. The intention is always a material element in the offense of larceny; in this case it is especially material, in view of the fact that the taking was admitted, and the defendant’s only defense' was that there was no intention to steal it. The defendant’s complaint is that not only was his defense practically withdrawn from the jury by the charge of the court, but further, that the jury should have been fully instructed upon the law on the subject of intent, so as to enable them intelligently to weigh and consider the testimony in the ease. It is also insisted by the plaintiff in error that the verdict is contrary to the evidence. The plaintiff in error insists that the court should have charged the jury the law relative to circumstantial evidence, as applicable to the circumstances of the ease and to the intention of the defendant .at the time qf the taking. In his motion for new trial the defendant further contends that there was no issue b'etween the State and the defendant as to the taking or the manner of the taking, the only contested issue being as to the intention of the defendant at the time of the taking; and, the court having failed to charge the jury with reference to intention in this connection, this was a
In Central R. R. v. Harris, 76 Ga. 509, the point was made that a plaintiff in error could not use the same exception as that nov^ insisted upon in the present case, because “he did not call the attention of the court [below] to the omission of which he now complains;” but Chief Justice Jackson, reviewing all of the former decisions of the Supreme Court on the subject, says, “the eases cited, and the principle on which they rest, do not apply to the clear omission to’notice in the charge a plain defense of the com
In view of the fact, as it appears from the record, that the defendant had not, and could not have, any-other defense than that his taking (which was admitted) was not with intent to steal, we think that an instruction to the jury to the effect, first, that they should consider what was the intention at the time that he took the gun and carried it out of the store; and that, secondly, unless the jury were satisfied, to tire exclusion of every other reasonable hj'pothesis or supposition, that when the defendant took the gun, if he took it, he intended to steal it, they should acquit him, was demanded, even without request.
In Horton v. State, 120 Ga. 307 (47 S. E. 969), it was held that the defendant was entitled to a charge on the subject of manslaughter, and the judgment was reversed because of the failure to charge therein, although his counsel (so far from requesting that the law of manslaughter be charged) actually insisted at' the trial that there was “no manslaughter in the case.” Our opinion is further confirmed by the rulings in Phenix Mfg. Co. v. Hart, 112 Ga. 765 (38 S. E. 67); Seymour v. State, 102 Ga. 806 (30 S. E. 263); Mays v. Shields, 117 Ga. 817 (45 S. E. 68); Whelchel v. Electric Ry. Co., 116 Ga. 431 (3) (42 S. E. 776); Whedon v. Knight, 112 Ga. 642-3 (37 S. E. 972). The publicity of the taking, the delay of more than two months in beginning the prosecution, and the admission of the prosecutor that-negotiations were meanwhile being carried on with reference to the payment of an indebtedness of $150, due him by a brother-in-law of the defend
Judgment reversed.