23 Ga. App. 369 | Ga. Ct. App. | 1919
Lead Opinion
The defendant was charged with having pos
Under the particular facts of this case, we do not think the court erred in failing to charge the exact language of section 1010 of the Penal Code upon the law of circumstantial evidence. The only possible hypothesis consistent with the innocence of the accused, arising from the evidence and her statement, was that she did not have any knowledge of the whisky being on her premises. The judge presented this hypothesis in concrete form to the jury, and instructed them that before the defendant could be convicted, the State must show that she had a guilty knowledge of the whisky being on her premises, and that if it failed to do so, she must be acquitted. Under the ruling in the cases cited in the headnote, we think the charge of the court sufficiently presented the principle of the law of circumstantial evidence applicable to the facts of the ease.
Judgment affirmed.
Dissenting Opinion
dissenting.
It is the well-settled law of this State that where a conviction depends entirely upon circumstantial evidence the trial judge must give in charge to the jury the law relative to the degree of proof necessary to convict upon such evidence. See Park’s Penal Code, § 1010, and numerous citations under that section. It has been held, however, that, where the trial judge fails to expressly charge the law in reference to circumstantial evidence, but does, "fully and liberally to the defendant, instruct the jury as to the law of reasonable doubts, and the amount and character of testimony necessary to warrant a conviction”, he fully complies with the duty incumbent upon him in respect to charging the law of circumstantial evidence. The above-quoted language is taken from the case of Barrow v. State, 80 Ga. 191 (3). The authorities which lay down this seeming exception are cases wherein the evidence
In Hamilton v. State, 96 Ga. 301 (22 S. E. 528), Judge Samuel Lumpkin, who wrote the opinions in both the Barrow and -the Toler cases, said, in the headnote thereto: “When in the trial of a criminal case the evidence against the accused was entirely circumstantial, it was the duty of the judge not only to charge upon the law of reasonable doubt, but also, whether so requested or not, to state to the jury the rule usually applicable in such cases, to the effect that the evidence must connect the accused'with the perpetration of the alleged offense, and must not only be consistent with his guilt, but inconsistent with every other reasonable hypothesis.” Further on in his opinion in that case the learned judge said: “The law upon this subject is very concisely and aptly stated in the 12th Am. & Eng. Ene. of Law, p. 879,-from which we make the following quotation: ‘Where the prosecution relies solely upon circumstantial evidence to secure a conviction, it is incumbent upon the trial court to instruct the jury as to the law applicable to such proof. No particular form of language is required; if the ideas conveyed are correct and so expressed as to meet the comprehension of the jury, it is sufficient.’ And see the cases there cited. In Barrow v. State, 80 Ga. 191, this court intimated [italics mine] that in a case in which the court ought to instruct the jury specifi
In the ease of Jones v. State, 105 Ga. 649, also cited and relied upon in the majority opinion, suffice it to say that Mr. Justice Little, at the conclusion of the headnote therein, says: “It would be otherwise if the evidence made the case close or doubtful, or if the account given of the manner in which the possession of the stolen goods was obtained was probable or consistent.” In the. Mangum and Bush cases, cited in the majority opinion, the charges were much fuller than in the case now under consideration. Both
According to the view which I take pf the evidence in the case now before us, the doctrine of the Barrow case does not apply. I do not concede that the guilt of the accused is “clearly and convincingly proved.” No liquor was found in the defendant’s actual possession. Several small receptacles containing liquor were found on the defendant’s premises, outside of her dwelling-house, Only from the manner in which this liquor was placed, and the opportunity afforded thereby to charge the defendant with knowledge of its being on her premises, could she have been convicted. The circumstances were eopsistent with her innocence, and might not, in the minds of the jury, have excluded “every, other reasonable hypothesis save that of the guilt of the accused.” NoAdoes it appear that “the cpurt very fully and liberally to the defendant instructed the jury as to the law of reasonable doubt, and the amount and character of testimony necessary to warrant a conviction.” The charge pf the court in this connection was: “In order to convict the defendant of this offense, it is necessary for the State to show to your satisfaction that the defendant had a guilty knowledge of the whisky being there, then you will acquit the defendant,” Then,'after the customary charge on the defendant’s statement, the court concluded with, a final instruction that “If you believe the defendant is guilty beyond a reasonable doubt, you will convict the defendant, otherwise acquit her.” The court did not “charge fully the law of reasonable doubt.” (Italics mine.) He made no reference to it in connection with his charge as to knowledge by the defendant of the presence of whisky on her premises. He did not “warn the jury not to convict unless morally satisfied of her guilt;” he did not “ipipress this upon them by repeated statements to this effect;” he did not “inform them that if, aftér an honest and impartial investigation, they were uncertain as to
I do not dispute the doctrine of the Barrow case, although it is confessedly obiter dictum. I am content to leave it with its author’s stricture upon it in the Hamilton case. Suffice it to say that if it is an exception to the general rule, for that reason it should be very cautiously applied.- It should be confined and restricted to those cases only which clearly fall within its compass, and where a failure to apply the general rule was harmless.
Had the law of circumstantial evidence been given in charge to the jury, the defendant might have been acquitted. The jury might have concluded, from the manner in which the liquor was located upon her premises, that she had no knowledge of its existence. The jury might have concluded that the circumstances were not suffi-' cient to exclude every other reasonable hypothesis save that of the guilt of the accused. The conviction depended entirely upon circumstantial evidence, and the verdict should be set aside and a new trial granted because of the failure of the trial judge to charge the law relative to the degree of proof necessary to convict when a conviction depends entirely upon such evidence. Lewis v. State, 6 Ga App. 205 (54 S. E. 701).