7 Ga. App. 115 | Ga. Ct. App. | 1909
The defendant was charged with burglary, iu that be broke and entered the warehouse of the Southern Railway Company at Hazlehurst, 6a., and stole certain freight therein contained, alleged to be the property of the Southern Railway Company. Upon arraignment, and before pleading to the merits, be filed a plea in abatement, on the ground that certain of the grand jurors who bad participated .in the finding of the indictment were related to the consignees of some of the articles of freight alleged to have been stolen. The court struck the plea, and this is made a basis for one of the exceptions. The defendant was convicted, and made a motion for new trial, which was overruled. To this also exception is taken. By exception pendente lite, as well as in his motion for new trial, the point is made that the court erred in not continuing the case. Further facts necessary to an understanding of the matters decided will be stated in the course of the opinion. .
1. Whether a defendant can raise by plea in abatement the point that one or more of the grand jurors were disqualified by reason of relationship to some party interested, or for other grounds propter affectum, is a subject on which the courts are not iu harmony. The weight of authority is to the effect that no such ground
2. The defendant filed a written, sworn motion for continuance, on the ground that he had an absent witness by whom he could prove that he procured honestly from another person the goods which it is alleged he took by the burglary; his contention being-that this witness was present when the goods found in his house were brought and delivered to him. There was counter-showing as to the diligence of the prisoner in procuring this testimony, also there was testimony to the effect that the defendant had outlined his grounds of defense previously and had made no mention of this
3. Exception is taken to the fact that the court allowed the Southern Railway Company’s station agent to testify that the warehouse which was broken was the property of the Southern Railway ■Company, and that he was in possession of it for them. The ground of objection is that, the warehouse being realty, title could be shown only by producing the deed or other writing. The point is manifestly not well taken. Ownership for most purposes, and especially for purposes of prosecutions for burglary and larceny, may be shown by proof of possession; the proof of possession in an agent is evidence of ownership of his principal.
4. It seems too plain for discussion to say that a carrier has such an interest in the goods in its possession for transportation as to support an allegation in the indictment that it was the owner of them.
5. One theory of the State, supported by some of the evidence, was that the defendant did not commit the burglary unaided. The State offered testimony to show that the other persons who were supposed to have aided him were found in possession of a portion of the stolen property. Defendant’s counsel objected to this testimony upon the ground of irrelevancy. And in overruling the objection the court remarked: “It would be admissible for the purpose of showing a. conspiracy.” Exception is taken to this remark on the ground that it amounted to an expression of opinion on the part of the court, in violation of §1032 of the Penal Code (Civil Code, §4334). It has been repeatedly held that such statements
6. Inside the railway warehouse there was a room cut off by walls and a door, and occupied by the Southern Express Company. It was shown that the burglar broke through this door and took certain things out of the express office. These articles-were found in the possession of the defendant and his alleged confederates. Defendant’s counsel objected to the proving of these facts, on the ground that they related to a separate transaction. The testimony had a distinct relevancy to the issue on trial, and was not within .the general rule which forbids inquiry into other crimes, disconnected with the transaction under investigation. See Ray v. State, 4 Ga. App. 67 (60 S. E. 816).
7. Error is assigned upon the following charge of the court: “If the defendant fled away, that would be a circumstance of guilt that this jury may take into consideration along with other facts and testimony as brought out upon the trial of this case, in order to illustrate the question as to whether or not he is guilty or not guilty.” Dislocated from its connection, this might seem to be an erroneous charge, and might appear to be subject to the criticism upon it, that it expresses an opinion upon the weight of the evidence. The whole context on this subject is as follows: “In looking to the circumstances as developed upon the trial in this case, I charge you that you may look to the evidence and see whether or not there is evidence of flight upon the part of the defendant, that would be a circumstance. If the defendant fled away, that would be a circumstance of guilt that this jury may take into consideration along with other facts and testimony as brought out upon the trial of this case, in order to illustrate the question as to whether or not he is guilty or not guilty. If the defendant fled away — left here, and you find, from the evidence, that he left here as a result of conscious guilt, then you would be authorized to con
8. There were several minor exceptions in the record, but they may be disposed of by the general statement that none of them show reversible error. There is little or no doubt as to the defendant’s guilt. It is in no sense á close ease, and the judgment would not be reversed for small errors which in all human probability would not likely have affected the jury.
Judgment affirmed.