Carter v. State , 46 Ga. 637 ( 1872 )

Montgomery, Judge.

1. The verdict of guilty in this ease is based entirely upon circumstantial evidence, which we hardly think excludes every other reasonable hypothesis but that of the prisoner’s guilt. No article seen by the only witness who undertakes to identify them is sufficiently proven to bear more than a resemblance to the missing articles of the prosecutor. Nor were the articles shown to be in the possession of the defendant, but only in a house of which he was an inmate, his own domicil being a room different from that in which the articles supposed to be those stolen, were found. But suppose the articles identified and proven in the possession of the defendant, does that show burglary in the night time? Or does the whole evidence exclude every other reasonable hypothesis than the guilt of burglary in the night time? Is it not equally reasonable to suppose that the defendant has been guilty of receiving stolen goods, knowing them to be stolen?

2. We think also the testimony of Harriet Thomas, if it had been before the jury, might have altered their verdict. It is material, and we cannot say there was any ladies on the part of the defendant in not having it before the Court on the trial.

Upon the whole, we think a new trial should be granted.

Judgment reversed.