Simmons v. State
85 Ga. 224
Ga.
1890
Check Treatment
Bleckley, Chief Justice.

There was no contest at the trial and no ground for any in the evidence as to the corpus delicti. The sole questionable element of the case was as to whether the person accused and on trial was the burglar. The inculpatory evidence tending to identify him as the guilty party was wholly circumstantial. It was very strong evidence, and had he been convicted without any substantial error of the court in charging the jury, we should have been altogether satisfied with the verdict. It seems from the record that the jury hesitated. They *228remained out from twelve to twenty hours; then returned and requested the court for a further charge in reference to circumstantial testimony. Responding to this request, a further charge was given, in which the court said amongst other things: “This case is not founded entirely upon circumstantial testimony. There is both positive and circumstantial testimony.” We think the jury must have understood this to mean that there was some direct evidence to connect the accused with the offence charged; for that was the only part of the case upon which the jury could have felt any want for further instruction. There was nothing else to 'cause them to hesitate for a minute, much less for more than a dozen hours. We think also-that, taking the language above quoted in connection with the context, the court meant by positive testimony the same as direct testimony, inasmuch as positive was contrasted not with negative but with circumstantial testimony. As we have already said, there is no direct evidence whatever as to who was the perpetrator of the burglary. No witness knew who committed it, nor could the jury know except by inference from the various facts and circumstances established by the evidence. The question of the prisoner’s connection with the offence should have been settled by the jury, without any intimation from the bench that the evidence was not wholly circumstantial as against him; for such was its nature and character. That being true, to warrant a conviction, it had to be of such force as to exclude every other reasonable hypothesis save that of the guilt of the accused. Orr v. The State, 34 Ga. 342; Martin v. Ihe State, 38 Ga. 293. Although we find no other error in the charge of the court complained of, we feel constrained to order a new trial. Were we a jury and not merely a reviewing court, we might feel warranted in allowing the conviction to stand. But the right of trial by jury *229involves the right to he tried without any material error in the charge of the court as to the nature of the evidence by the aid of which the jury are to arrive at their verdict. Judgment reversed.