14 Ga. App. 672 | Ga. Ct. App. | 1914
John Henderson, Herschel Henderson, and John Herrin were jointly tried on an indictment for simple larceny, and were convicted. They except' to the refusal of a new trial. The defendants claimed that the hogs alleged to have been stolen, and which had been roaming loose in the woods, were given to them
■Section 1058 of the Penal Code declares: “It is error for the judge . . in his charge to the jury, to express or intimate his opinion as to what has or has not been proved; . . and a violation of the provisions of this section shall be held . . to be error, and the decision in such case reversed, and a new trial granted.” Section 4863 of the Civil Code is to the same effect. Complaint is made in the motion for a new trial that the trial judge violated this law, in charging the jury in the following language: “If you find that these four boys were there acting together, with a common purpose and intention to take the hogs they knew were not theirs, 'and they did not honestly believe belonged to them (and as to that you are to look to all the circumstances of the case, the way they were marlced, and the circumstances as to whether or not the marks were changed in any way, and all the facts and circumstances surrounding the case), and if you find that these four boys took the hogs with the purpose and intent to steal them, then you should convict them all;” the alleged error being that the expression used by the judge, “the way they were marked,” amounted to an expression or intimation of an opinion that the hogs were marked when taken. The defendants were charged with the larceny of two hogs, alleged to have been “marked under bit and upper bit in one ear and under square in the other.” It was testified on the part of the State that certain,hogs caught in a swamp by the defendants were the hogs alleged to have been stolen; and there was a direct issue between the State and the