McElven v. State, 30 Ga. 869

McElven v. State

30 Ga. 869 | Ga. | 1860

By the Court.

Stephens, J.,

delivering the opinion.

All the assignments of error in this case are overruled, except the 5th in relation to the charge as to reasonable doubts. The Court charged that the prisoner was entitled to the benefit of reasonable doubts, but added that reasonable doubts usually arose from either a want of evidence or a *872conflict of evidence. This addendum had a tendency to unduly depreciate the doubt urged in this case, by an intimaion that it rested on an unusual ground, for whatever doubt there was, did not arise from want of evidence nor from conflict of evidence, but turned solely upon the credibility of a part of the evidence, its credibility being attacked on the ground, not of conflicting evidence, but of its own unreasonableness. A part of the evidence was an explanation' which the defendant gave when the sheep were found in his pen, to the effect that he had mistaken these sheep for some of his own. The reply to this was, that it was a mere fabrication entitled to no credit. Now there are two circumstances which, in my judgment, tend strongly to sustain it. One is, that while it had been given long before the trial, and was of a character to be easily exposed, if false, it was not exposed. The other is, that while there is a very close resemblance between the mark of these sheep and the mark of his own, as described in his bill of sale, the only difference is one additional mark in his own. In fabricating a mark with a view to protecting himself in stealing Culpepper’s sheep, as it was alleged he did, he might have omitted a mark which Culpepper’s sheep had, from overlooking it, but he would hardly have added one which they did not have. To suppose, therefore, that the mark in that bill of sale was a fabricated one, is supposing that he fabricated it for his own detection and not for his protection. These circumstances commend his story, to my mind, as a reasonable one. All the doubts in the ease turned upon its reasonableness. The question was, not whether the cause of the doubts was an unusual one, but whether it was a reasonable one. If the doubts were reasonable, it was immaterial whether they arose from a usual or an unsual cause, and the attention of the jury ought not to have been directed to such an issue, by even the slightest intimation.

Judgment reversed.