O'Connell v. State , 55 Ga. 296 ( 1875 )

Bleckley, Judge.

1. The important question made by the motion for new trial, is whether there was evidence enough to convict. The railroad iron, spikes, chairs, brasses, etc., were alleged in the indictment to be the property of the Central railroad and Banking Company, and to have been stolen by a person unknown, and afterwards received by the prisoner, he knowing them to be stolen. All these points were material: 2 Bishop’s Cr. Law, section 953; 2 Bishop’s Cr. Procedure, section 707; 4 Georgia Reports, 465; Roscoe’s Cr. Ev., sections 875-6. As the evidence comes to us in the record, it seems to us too vague and uncertain to establish ownership of the property in the Central Railroad and Banking Company, or that it was ever stolen from that company. Some of it was marked “ C. R. R.”; but how marked and by whom? It is not explained whether the marks were indented in the iron or raised upon the surface, or put on in ink, paint or penciling. What is meant by marking with the Central Railroad pattern? We cannot perceive that any of this property was clearly shown to have ever been in the possession of the company. If it was, where was it, and what agent had the custody of it? One witness swears the company lost iron in the year 1872, but how was it lost, and where from, and what kind, and how much? Why did not the railroad employees who testified in the case speak more definitely? We think there is more in this case than has been developed, and that there is no reason why the witnesses should not be more carefully sifted. It is altogether probable that they know enough to identify the property, prove ownership, and make out a larceny, but the difficulty is they did not go into the cáse thoroughly, or else their evidence, as delivered on the stand, has not been properly briefed and brought up. We must act upon it as we find it, and so doing, we pronounce it fatally deficient.

2. According to evidence adduced in behalf of the prisoner, some of the iron was purchased by his agent, and received in his absence. It was proposed to prove what the person who sold it to the agent said as to title in making sale to the agent. That was competent evidence. It was a part of the res gestee. There was no proof that the particular iron involved in that transaction was received by the prisoner otherwise than through this agent. If he ratified the agent’s act what did he ratify? To ascertain that, all evidence is relevant that goes to characterize the act. What was said at the time may be true or false, but still, the fact that it was said was a part of what transpired, and tends to illustrate the transaction. The evidence may be worth very little when it is in, but nevertheless, being relevant, it is admissible.

We grant the new trial on the former ground. Let the case be tried over on fuller testimony, if it is to be had.

Judgment reversed.