Wilson v. State

| Ga. | Feb 15, 1881

Crawford, Justice.

Lewis Wilson, the plaintiff in error, was jointly indicted with two other persons for larceny from the person of one Wm. G. Mosely of the sum of $590.00. The prisoners having severed, he was tried first, convicted and moved for a new trial, which the court refused, and he excepted.

The questions made by the motion for a new trial, and which have not been considered and disposed of in the case of the State vs. Horton, just rendered, are :

1. That the judge in his instructions to the jury, said, “ The charge in the bill of indictment against the prisoner now on trial is larceny from the person of the prosecutor,” when the indictment charged the larceny to have been from the person of Wm. G. Mosely.

In verifying the grounds of the motion for a new trial the judge certifies that in charging the jury he inadvertently called Mosely the prosecutor. This inadvertence of the judge was heard by the prisoner’s counsel, and if material to the defense, they should have called the attention of the judge to the same, that he might, as he undoubtedly would have done, have promptly corrected it. Not having done so, we do not think that it constitutes a good ground to set aside the verdict and grant a new trial.

2. Because the court erred in charging the jury, that it was not necessary to authorize a conviction, that the jury should believe that the evidence certainly and distinctly identified the money found on the accused, or that the bills were the same bills which were in the pockets of the prosecutor, the question being what bills were on the person of the prosecutor at the critical moment.

Whilst this charge does not clearly put the law to the jury on that branch of the case, still we think that, under a reasonable and ordinary construction, the judge meant that it was not necessary to a conviction that the bills stolen should be accurately described and identified, but that the jury must be satisfied that they were the same bills which were on the person of the loser, and that the defendant by himself or a confederate was the party guilty of the larceny.

3. Because the court erred in admitting, over defendant’s objection, the order from the defendants, Wilson, Horton and Donovan to Captain Connally to turn over their money and effects to their attorneys, and the other writing showing payment of $590.00 by said attorneys to attorneys of Mosely.

The order here referred to was one directing the officer to pay over the money taken from their possession to their attorneys. They had been jointly indicted for the same larceny, and this paper was jointly signed, and for a particular fund charged to have been involved in the transaction, and for the larceny of which they were on trial, and, as a joint act of all the parties, was admissible. The fact that the money was paid to Mosely either by themselves or their attorneys was a circumstance proper to go to the jury for their consideration.

4. Because the verdict did not specify which defendant was found guilty. The record before us shows that John Horton, Lewis Wilson and Jas. Donovan were jointly indicted ; that the said defendants severed ; and that the state elected to put Lewis Wilson, this plaintiff in error, on trial; and that the verdict was, “ we the jury find the prisoner guilty,” which we deem quite sufficient to identify the party tried.

Judgment affirmed.