2 Ga. App. 826 | Ga. Ct. App. | 1907
The defendant was convicted of larceny from the-house, and, upon the overruling of her motion for new trial, excepted. It is needless fo discuss any of the twelve assignments of error, except two. The others are wholly without merit. So far as the facts are concerned, the issue between the State and the-accused is clear cut and well defined. The evidence for the State tended to show the larceny of a cap and hat pin. The evidence in behalf of the defendant, if believed by the jury, established an.
For this reason we think that the judge should not have per-' haps stressed the burden devolving upon the defendant, and perhaps magnified it, by reading and then repeating to the jury §992 of the Penal Code, without telling them, in the same condition, that the onus was on the accused to verify the alibi, not beyond all reasonable doubt, but only to the reasonable satisfaction of the jury; and further, that any evidence whatever of alibi is to he considered on the general case, with the rest of the testimony, and if a reasonable doubt of guilt be raised by the evidence as a whole, the doubt must be given in favor of innocence. No request to charge upon the subject was presented, and therefore we should not reverse the judgment upon this ground. We refer to it, however, because we know that the upright and impartial judge who presides in the city court of Sylvester needs only to have the matter suggested, in order that there may be even no vestige' of ground for complaint on the future’ trial of this case, which we are constrained to award upon another ground.
It has been frequently ruled that when the defense of alibi is set up in a ease and is sustained by testimony, the failure to' charge upon the law of alibi will cause a new trial. The judge in this case charged the law of alibi by twice repeating to the jury §992 of the Penal Code. In the absence of a written request for more specific instructions, this may be a compliance with the letter of the rule laid down in Moody v. State, 114 Ga. 449, Fletcher v. State, 85 Ga. 666, and other decisions. But we think the far better and fairer practice is to specially instruct the jury in every ease further that the accused is not required to establish his defense of alibi beyond a reasonable doubt, but only to the reasonable satisfaction of the jury; and to charge in addition, that even if the alibi be not established to the satisfaction of the jury, any evidence whatsoever of alibi must be considered with the rest of the testimony, and if a reasonable doubt of guilt be raised upon the consideration of the evidence as a whole, the defendant should be acquitted. Harrison v. State, 83 Ga. 130; Landis v. State, 70 Ga. 651. As said by Judge Jackson in Ledford v. State, 75 Ga. 858 (3), “The charge excluded all the evidence about the alibi from, being weighed by the jury on the subject of reasonable doubts
"We think a new trial should have been granted because the court erred in charging the jury upon the subject of confessions, as excepted to in the seventh ground of the motion for new trial. After properly instructing the jury upon the law of circumstantial evidence (as he should have done in this case), the court gave sections 1002 and 1005 of the Penal Code in charge to the jury. Section 1005 is as follows: “All admissions should be • scanned with care and confessions of guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify a conviction.” This charge was not followed' by any further instruction by the court on the subject, nor was the attention of the jury called to the difference between an inculpatory admission and a confession. If the court had in the charge clearly drawn the' distinction between a confession of guilt and an inculpatory admission, the error would not have been so grave. But we do not think that any reference to the subject of confession was authorized by the evidence in this case. And we are.further of the opinion that the reference was peculiarly harmful to the defendant, for the very reason that unless the attention of the jury was specifically and directly called to the marked distinction between a confession and an inculpatory admission, they would most probably be misled into the conclusion that there was evidence of a confession. This, however, is not the case.
The evidence of the prosecutor was that he asked the defendant where she got her hat pin, “and she said she got it out of a hat there on the table.” This was no confession that she had stolen the hat pin. It was an inculpatory admission, — a circumstance, which in connection with the facts that the defendant had the hat pin partly concealed under her apron, and that she voluntarily gave up the hat pin and the cap upon being discovered with them,— would have authorized the jury to find a verdict of guilty. But it
