Gaines v. State , 124 Ga. 5 ( 1905 )

Evans, J.

The prosecutor, who was a merchant, closed his store for the day and went to his home. After he had retired for the night, the defendant called at his house and induced him to return to his store in order that defendant might buy cloth for a shroud for the dead child of his sister. Upon arriving at the store, where they were met by three of the defendant’s brothers, the defendant confessed that the r'eason assigned for urging the prosecutor to open the store was a mere pretext, and that he and his companions really wanted to buy something to eat. The evidence warranted a finding that the defendant, in pursuance of a previous understanding with his brothers, joined with two of them in engaging the attention of the prosecutor and keeping him in the rear of the store, while the other embraced the opportunity thus afforded to steal a box of tobacco, with the larceny of which they were subsequently jointly charged. Accordingly, the trial judge did not err in charging the jury as to the law bearing upon this theory of the case, nor did he abuse his discretion in refusing to set aside the verdict of guilty returned by the jury.

Submitted October 16. Decided November 8, 1905.

Accusation of larceny from the house. Before Judge Hodges. City court of Hartwell. June 17, 1905.

Samuel L. Olive, for plaintiff in error. James H. Shelton, solicitor, contra.

Judgment affirmed.

All the Justices concur.