104 Ga. App. 217 | Ga. Ct. App. | 1961
1. The amended motion for new trial contends that it was error, on the trial of an indictment charging the defendant with simple larceny in that he did take and carry away a certain described cow with intent to steal the same, for the court to fail to charge in the absence of request the language of Code § 26-2602 relating to simple larceny and Code § 26-2607 relating to cattle stealing. It is better practice to define the offense in the language of the Code. However, where, as here, the court read the indictment to the jury, which indictment was in the language of Code § 26-2607, and instructed them that the State must prove every material allegation thereof before a conviction would be authorized, the accused was not harmed thereby. Hall v. State, 86 Ga. App. 448 (4) (71 SE2d 668).
2. It was not error to overrule the motion for a mistrial on the ■ ground that the solicitor in questioning a witness had brought out an answer that placed the defendant’s character in issue, where it appears that, to ’ the only question asked which might have elicited an answer showing that the defendant had been in previous difficulties, no response was in fact made. Brannan v. State, 43 Ga. App. 231, 234 (158 SE 355).
3. Special ground 3 of the amended motion for a new trial complains of the failure of the trial court to charge the law of circumstantial evidence as related to the law of conspiracy. The court gave a correct charge on the law of circumstantial evidence generally and instructed the jury that before such evidence would support a conviction it must exclude every other reasonable hypothesis save that of the guilt of the accused. Had the defendant desired further instructions on the subject he should have made a timely written request. Fortson v. State, 69 Ga. App. 378 (1) (25 SE2d 820) and citations.
4. The evidence most favorable to sustaining the verdict of guilty on this indictment for cattle stealing is as follows: a witness coming along the road in an automobile observed three men who appeared to be over the fence from a distance of about 125 steps, at which instant a cow “came sailing over the fence”; that his view was momentarily hidden; that “the defendant and the others were around the cow, which was up in the air”; that the defendant was standing between
This court cannot say as a matter of law that the verdict is entirely without evidence to support it. The general grounds of the motion for a new trial are without merit.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed.