10 Ga. App. 786 | Ga. Ct. App. | 1912
1. We agree that § 162 of the Penal Code (1910) defines two distinct offenses; one the marking or branding of the animal, and the other the altering or changing the mark or brand. We also agree that two separate and distinct offenses can not be joined in one count in the same indictment, where the objection is raised on arraignment by motion to quash.or special demurrer to the indictment. 1 Bisho.p, Criminal Procedure,. p 432. But we
2. In the indictnjent the steer alleged to have been marked was described as the property of J. B. Beaver; and the evidence warranted a finding that this allegation was true. The court charged the jury, in substance, that if the accused marked the steer, and did it for the purpose ,of appropriating it to his own use and preventing the owner from identifying it, it would be immaterial whether
3. One of the grounds of the motion for a new trial is that the court erred in charging the jury as follows: “In determining the weight you will give the evidence of the witnesses, take their manner of testifying, their interest or want of interest in the case, their feeling, prejudice, bias, relationship to the parties and to the case, or anything of that kind that may appear from the evidence, and you may believe that witness who has the best means of knowing the facts about which he testifies and the least inducement to swear falsely, and under these rules determine what the truth of the evidence is.” In the case of L. & N. R. Co. v. Rogers, 136 Ga. 674 (71 S. E. 1102), a new trial was granted on account of an instruction in almost identically the language above set forth. It was held to be error to instruct the jury that they might believe that witness, or those witnesses, who had had the best means of knowing the facts to which they testified, and the least inducement to swear falsely, without the qualification that the witnesses be of equal credibility. Quoting from a former opinion of Mr. Chief Justice Simmons,- the Supreme Court said: “Such a witness may for other reasons be entirely unworthy of belief; and certainly it would not then be the duty of the jury to believe him.” In the present ease the alleged owner of the animal, J. B. Beaver, testified positively as to his ownership. There were several witnesses for the defendant under whose testimony the jury might have found that the animal