26 Ga. 633 | Ga. | 1859
By the Court.
delivering the opinion.
The defendant was presented by the grand jury of Richmond county for the offence of simple larceny. Stealing hogs was the charge. He was tried and convicted. He moved for a new trial, on the ground that the verdict of the jury was contrary to law, evidence and the charge of the Court. The Court refused the motion and the defendant' excepted. We are not disposed to interfere with the verdict of a jury in a criminal cause, especially when we have the
The hogs charged to have been stolen, must have been killed in the day time, for they were killed at least a mile from the owner’s residence, and they were in the habit of going home to sleep at night, and it was by their failure to return home on Monday night, that the owner was led to believe that they had been stolen. The defendant’s residence was five or six miles from that of the owner of the hogs. There is no evidence to connect the defendant with the killing of the hogs. There is no doubt but they were hauled from the place at which they were killed, in the cart of the defendant. The track of the cart was traced, the day after, from the place at which the hogs were killed, to a drain at the end of the lane of Newman, the defendant, by Martin, who owned the hogs, and a man by the name of Simmons.- It was about one hundred yards to the house of defendant. On the next day, James D. Green followed the cart track from the end of the lane to the place at which, there is. no doubt, the hogs were killed. He followed the track back into the defendant’s lane. He also measured the' horse’s track, and found that it suited the foot of defendant’s horse. He found another track which led into Mr. Newman’s yard, between the time he had been there and his return. This track, I suppose the witness means, had been made during his absence. This is the only track that any of the witnesses traced into James Newman’s yard. The track followed from the place where the hogs were killed was not
The defendant manifested great anxiety to settle the case, and paid Martin fifty dollars for the hogs. He all the time protested his innocence, saying the circumstances closely connected his family with it. It is true, his protestations of innocence were entitled to little weight, but that his family were implicated, if true, was quite a sufficient reason for the anxiety he manifested to settle the case, and his pertinacious efforts to settle it, after his having been repeatedly cautioned, are not, to our mind, evidence of guilt, but, on the contrary, they show great determination to settle a matter which, if prosecuted, might result in the conviction of a member or members of his family. These were all the circumstances which point to the guilt of this defendant. They are consistent with his perfect innocence. The horse and cart might have been used with or without his consent. If the latter, no blame could be imputed to him. If he loaned it without knowing the use to which it was to be applied, that cannot connect him with the transaction. The stolen property was not found on his premises; the track of the cart was not traced there, except as it passed through the yard to the
But there was evidence on the part of the defendant. The witnesses were his children, who testified that- he was at •home the night the hogs were said to have been stolen. One of them names Tuesday night, which was a mistake as to the day. They say their father was at home that night, and went to bed between eight and nine o’clock, and was called up when Mr. Day came there, between nine and ten o’clock. Mr. Day was called on the part of the State, who deposed that it was between ten and eleven o’clock that he went to the house of defendant on that night. If defendant had gone to bed, he dressed very soon. He came out in a minute after he was called by the females. The same witness testifies it was five minutes from the first call to the appearance of the defendant. This witness corroborates the family witnesses in the important fact that the defendant was at home on that night, at a late hour.
Mr. Bealle, who was with Day, testifies that it was about five minutes from the call to the appearance of the defendant. If he had gone to bed, he had time to dress.
We think that the evidence in this case establishes the facts that Martin’s hogs were stolen and killed, and hauled away in the cart of the defendant, drawn by his horse, and that he showed great anxiety to have the case settled, but we think there is an absence of proof to connect him personally with the larceny. As we have said, his .anxiety to settle the case can be accounted for on a hypothesis entirely consistent with his innocence. He had no part of the stolen property; the cart was not traced to his house; or, if it was, it passed through the yard directly to the house of another, whose gate it entered; it may have passed through his yard unknown to him, at night; he may have loaned the cart without a knowledge of the use to which it was to be appropriated, or it may have been taken without leave. If there had been a part of the property found on him; if he had been seen with the cart; if it had been driven to his yard and stopped, not passing beyond, we should not have felt authorized to interfere with the verdict of the jury; but believing as we do, that if he be guilty, the evidence adduced against him in this record, does not prove him so, we award him a new trial.
Juries are generally too reluctant to convict on circumstantial evidence. While it is true that a man ought not to be punished for an offence of which he is guiltless, the jury ought not to pronounce the accused innocent, for the want of positive evidence of his guilt. Circumstances satisfactorily proven, which point to his guilt, and which are irreconcilable with the hypothesis of his innocence, or which require explanation from him, and may be explained by him, if he be innocent, but which are not so explained, ought to satisfy the conscience of every juror, and justify him before that forum, for rendering a verdict according to their almost uner
Judgment reversed.