22 S.E.2d 148 | Ga. | 1942
In a case where a defendant is on trial for the offense of robbery by force, it is reversible error to give in charge sections 26-4603 and 26-4604 of the Code, respecting the compounding of a felony, although it appears that before the trial the prosecutrix has been repaid the amount of money taken from her in such alleged robbery; it not appearing that there was any effort or agreement to procure a "settlement" or suppress the prosecution.
The trial was had only a few days after the crime was committed. The prosecutrix testified that she appeared before the grand jury on Monday morning (apparently to procure the indictment), and that the money which had been taken from her ($565) had been returned to her by the wife and daughter of the defendant on Wednesday of the same week. The trial was on Thursday. The defendant offered no evidence. In his statement at the trial he contended that he took the money from his sister for her own protection, because she was drinking. He said he took the money and put it in the bank, and told his wife to pay the money over to her, stating that he supposed his wife did, and that by that time he was in jail.
In the briefs filed by the State it is conceded that there was no evidence to authorize the portion of the charge under attack, but it is contended that the error was not harmful or prejudicial. There was nothing in the record to show the compounding of a felony. The essential elements of that crime were lacking. Hays v. State,
Judgment reversed. All the Justices concur.