57 Ga. App. 346 | Ga. Ct. App. | 1938
The accused Martin was convicted of the crime of larceny from the house. He filed a motion for new trial which was overruled and he excepted.
Special ground 1 of the amended motion for new trial complains that the court erred in charging the jury: “Now gentlemen, if you believe beyond a reasonable doubt that this defendant, J. D. Martin, in the County of Fulton and State of Georgia, at any time within four years prior to the date of the finding and the return of this bill of indictment by the grand jury, did, singly or in company with another, acting with a common intent and purpose to commit a larceny as charged in this indictment, did induce the one named in this indictment as the owner of the money to go with him to a house as alleged in this indictment, for the purpose of enabling this defendánt and another to obtain possession of money that belonged to the one named in this indictment as the owner, with the intent and purpose of getting the money into their possession for the purpose of enabling them to carry it away with intent to steal, and if you should believe that they did, in
In the trial the State contended that the defendant Martin and the codefendant Barnes had come to see Keith, a cabinet maker, in connection with having constructed an article which was later used in the commission of the crime. Keith was put upon the stand as a witness for the State and had testified on the direct examination that the defendant Martin and another man, whose
In ground 3 of his amended motion for new trial, the defendant alleges that the court erred in failing to instruct the jury “as to” the defense of the defendant on trial, “in that” the court overlooked and ignored “the contention of the defendant in his statement to the jury . . that he did not steal this money; that this was the prosecuting witness’s scheme to keep from returning the $100 which movant had deposited with Barnes in conjunction with the prosecuting witness . .” It is the general rule that in the absence of a timely written request for instruction thereon, the court is not bound to give in its charge the law of a theory which arises solely from the statement of the defendant. Gore v. State, 162 Ga. 267 (2, 6, 7) (134 S. E. 36); Hardin v. State, 107 Ga. 718, 721 (33 S. E. 700). The judge after instructing the jury as quoted in division 1 of this opinion, subsequently charged the principle of reasonable doubt, and: “If you should entertain a
The evidence authorized a finding by the jury that the defendant Martin was a co-conspirator and accomplice of Barnes in the committing of the offense of larceny from the house. The evidence supports the verdict and the court did not err in overruling the motion for new trial.
Judgment affirmed.