Timmons v. State , 14 Ga. App. 802 ( 1914 )

Russell, C. J.

1. While (as is frequently the case in such matters) the different witnesses disagreed in describing the color of the cow alleged to have been stolen, there was some evidence, descriptive of the color of the cow, which was substantially conformable to the description in the indictment; and since the comparative weight to be attached to the testimony of the different witnesses is a matter addressed peculiarly and solely to the jury, it can not be said that tlxex-e was a fatal variance betweexx the allegata and probata.

2. In the absence of an appropriate written request, it is not error to omit to call the attexxtion of the jury specifically to the necessity for a substaixtially exact agreeixxexxt betweexx the ixxdictxnexxt and the evidence, in the desci'iption of a cow alleged to have been stolexx.

3. The circumstances in proof corroborative of the testimony of the accomplice were sufficient to dispense with the necessity for a second witness.

4. An instraetion that “if the evidence in the case satisfies you beyond a x-easonable doubt that the cow described ixx the indictment was the property of Carrie Lewis, axxd that the defexxdaxxt Joe Timnxoxxs, acting in concert with Alonzo Washington, ixx Early county, oxx or about the date alleged ixx the indictment, wrongfully and fraudulently took axxd carried away such cow, with intent to steal, as is elxax-ged axxd alleged in the bill of indietmeixt, then the offense charged against hixxx woxxld be made out and yoxx woxxld be authorized to convict,” is xxot subject to exception upon the groxxnd that the jux-y probably understood this elxax-ge to meaxx that if they believed the evidence of the accomplice, without more, they would be axxthorized to convict the defexxdant. The exception is wholly without mex'it, since axx examination of the charge shows that the jury were correctly instructed that the defendant could xxot be legally convicted upoxx the testimony of the accomplice alone, but that there must either be aixother witness or sufficient eon-oborating circumstances to support and uphold the testimony of the accomplice.

5. In the present case the ixxstrxxctioxx to “take all the testixxxony in the case, coupled with all the proven circumstances, ixx coxxnection with the defendant’s statexxxent, measuring that statement by the rule of law which the coxxrt has given you in cliax-ge, detenxxine what the truth of the matter is, and, when you have found what you eoixsider to be the truth, let your verdict voice that truth,” is not objectionable as eoxxveying an expression or intimation of opinion, nor upon the ground that the language used tended to ixxduce the jux-y to act upon the testimony of the alleged accomplice or any other particular witness.

6. Viewed in connection with the charge of the court as a whole, the instruetion to the jury that “if you believe the defendant is guilty you ought to so find him,” is not erroneous for the reason that “this instruction does not restrict the jury as to what amount or'what kind of evidence they should base their belief upon.” This instruction did not leave the jury free to base their belief upon matter extraneous of the evidence, nor tend to induce them to act upon a certain portion of the testimony to the exclusion of the reminder as contended in the assignment of error.

Decided July 21, 1914.

Indictment for larceny; from Early superior court — Judge Worrill. February 7, 1914.

W. D. Sheffield, Erie B. Askew, for plaintiff in error. B. T. Gastellow, solicitor-general, R. R. Arnold, contra.

7. There was evidence which would have warranted the acquittal of the defendant, but the facts and circumstances in evidence authorized his conviction. The trial was free from error, and the judgment of the trial'judge in approving the verdict of the jury can not be disturbed.

Judgment affirmed.

Rom, J., absent.