Phillips v. State

33 Ga. 281 | Ga. | 1862

By the Court. —

Lyon, J., delivering the opinion.

1. There was no error in the Court permitting the witness, Wray, to testify as to the conduct and action of the negro boy, when the search was made and the pocket-book discovered. It was a part of the defense of the prisoner, that as the negro was about the store when the theft was committed, it was possible that he might have been the thief, and any evidence that had a tendency to break down or destroy this theory was admissible. We do not say that the emotions of joy or pleasure exhibited by the boy, as sworn to by the witness, were sufficient for that purpose. All we say is, that it was competent, and it was for the jury to determine its effect.

2. Eor a similar reason there'was no error in the argument presented by the Court — not an opinion on the facts of the unlikelihood of a stranger being the thief, when the pocketbook and money were left concealed on the premises. This view, a very plausible one, to say the least of it, served to destroy any other theory than that the money must have been stolen by some one on the premises.

The Court, upon consultation, was of the opinion that there was no error in the charge, as stated in the third ground of the motion for new trial, but upon a more careful consideration than we gave it at that time, I have some doubt as to its propriety, or rather its necessity, under the circumstances. I can not say that it was erroneous, but speaking for myself alone, I prefer that the charge should not be given. I cannot with reason justify it. A man has a negro boy in attendance upon the store, who is running in and out probably every, five minutes, a pocket-book is left carelessly on the counter or the head of a barrel, and in fifteen minutes disappears. To exclude from the jury entirely the probability, or even possibility, that the boy might, in passing in and out, have taken the pocket-book, unless the proprietor, who is charged with its abduction, without any positive proof whatever to sustain the charge, can show that in the interim the boy was in the store, is going a great ways, to say the least of it.

The fourth and sixth grounds of the motion for new trial were abandoned by counsel for plaintiff in error- in the argument before this Court.

A new trial ought to have been granted, on the ground of newly discovered evidence of the witness, Spieldoe. The testimony that the negro boy was down at the wood-pile, and jumped up from the place where the pocket-book was concealed, frightened, and at or about the time when the book and money must have been stolen, would have a strong tendency to remove the presumption of guilt that otherwise attaches to the prisoner, and with the testimony of Ernst, that the negro boy did come in and go out with the bag, while he was there, would be entirely sufficient to, and ought to, induce a different verdict from the jury. I am aware that Ernst was not sworn, but it is in evidence that he was present, and if the facts stated by the witness, Spieldoe, are true, Ernst’s testimony would be likely to corroborate it, but whether it would or not, the evidence is material and important, and might justly of itself change the result. The plaintiff in error was guilty of no laches in his effort to get this evidence — knowing that Spieldoe was in the'store, he called upon him, before the trial, to learn what he knew that would make in his favor. The witness told him that he knew nothing, thus accidentally or by design, misleading the accused, who was not bound in consequence to subpoena or compel his attendance as a witness. What Spieldoe did know and would swear, the prisoner never learned until after the trial. We think the plaintiff in error in the showing came fully up to the rule to obtain a new trial on the ground of newly discovered evidence in all respects. ,

Let the judgment be reversed.