18 Ga. App. 710 | Ga. Ct. App. | 1916
Admitting the evidence for the State to be probably true, the only evidence connecting the accused with the larceny was the circumstance that he sold certain hogs which the prosecutrix claimed were stolen. The presiding judge faded to instruct the jury on the law of circumstantial evidence; and this is complained of in the motion for a new trial. It is settled in this State by many decisions of the Supreme Court and of this court that such failure on the part of the trial judge requires a new trial, in a case depending entirely on circumstantial evidence. In Hamilton v. State, 96 Ga. 301 (22 S. E. 528), it was held that in the trial of a criminal case where the evidence was entirely circumstantial, it was the duty of the judge not only to charge upon the doctrine of reasonable doubt, but also, whether requested or not, to state to the jury the rule usually applicable in such cases, to the effect that the evidence must connect the defendant with the perpetration of the crime, and must not only be consistent with his guilt, but inconsistent with every other reasonable hypothesis than that of his guilt. In McElroy v. State, 125 Ga. 37, 39 (53 S. E. 759), it was said: "The court did not charge the jury on the subject of circumstantial evidence, and the omission to do so is made a ground of the motion for a new trial. Generally, in cases where the prose
As the case against the accused depended entirely on circumstantial evidence, the failure of the court to charge on the law of circumstantial evidence requires a new,trial, under the authorities cited supra. The law should he an exact science, and this court will aid in making it exact by following precedents binding upon it. “Whether dependent upon direct or circumstantial evidence, the true test in criminal cases is, not whether it be possible that the conclusion’ at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt.” Penal Code, § 1013. The evidence in this case satisfied the mind and the conscience of the jury beyond a reasonable doubt; and yet the law required that, the judge should give instructions on the weight, force, and credit to be given to circumstantial evidence. Eegardless of the opinion of the writer, judges should always bear in mind, “judex est eustos, non conditor, juris judieia exercere potuit, facere leges non potest.”
For the reasons set forth above, the judge erred in refusing to grant a new trial. Judgment reversed.