Bernhard v. State

76 Ga. 613

• Court: Supreme Court of Georgia
• Decided: March 23, 1886
• Status: Published

Opinion

Jackson, Chief Justice.

. Bernhard was convicted of stealing two bales of cotton,, and, being dissatisfied, brings his case before this court, as-f signing as error the denial of a motion to arrest the judgment' and the denial of a motion, for a new trial, on the grounds therein specified. . i

1. Bernhard being the only defendant on trial, a verdict' of. guilty meant him, and could not mean either of the others indicted with him, but not on trial. Thurmond vs. The State, 55 Ga., p. 599. Therefore^ the motion to arrest the judgment, was properly overruled.

2. The verdict is supported by the evidence, and therefore is not against evidence and' law, or open to kindred' complaints.

3. The court heed not give written requests, when in' the general charge the law of the case, and all the law ap-' plicable and necessary, has been given to the jury.

4. There was no error in the charge to the effect that,' if a witness sworn in the case is an accomplice, his testimony, without more, cannot convict, but if the jury believe-from the evidence that the witness was not an accomplice^ then his evidence alone may convict; and this would be' true, though he was charged in the indictment with the crime, and his own testimony showed he was not an accomplice, and no other witness testified on the point, and' though he was present, if that presence was constrained,- or he was enticed to be there by a false claim of defendant and another to property in the cotton and an antici- ‘ pat'ed lawsuit about it.

5. Where the cotton was alleged to belong to a man whose first initial was J. and the proof showed it was I., or vice versa, there was no error in instructing the jury that if the initial was written wrong by mistake in the indictment, the proof of ownership in the person bearing the true name would be sufficiently* made. The I and J are often exactly alike in writing. They are in the abstract of plaintiff in error, himself in this case identical, and in the record quite similar. Moreover, ownership was alleged to be in one Banks and this man, whose initial makes the point under consideration, and whose surname was Lindler, and the initial letter'of the middle name was all right.

6. There was no error in refusing to charge, “ While drunkenness is no excuse for crime, yet if you believe from the evidence that the defendant was drunk at the time of the' alleged offense, then you may look to this as a circumstance going to show any intention on his part to commit an offense.”-

There is no error in refusing to give it, first, because it is confused and difficult to be understood. It is supposed by us that the request means “ to show no intention to commit an offense,” but it does not so say. Secondly, because, while there is evidence that defendant was drinking, there is none that he was drunk. His own statement is obscure and without consistency or sense on this subject. And thirdly, because'if a man steal when he is drunk, he is just as guilty, under our statute, as if he were sober; otherwise, drunkenness would bean excuse for crime, when the statute says it shall be none. Code, §4301.

Cotton-making, ginning and packing would be a poor business in Georgia, if drunkenness excused a man for stealing it, unless the prohibition of selling intoxicating liquors prevailed everywhere in the state; and if it did, plenty of rogues would get drunk on cider and domestic wines in order to steal.

Judgment affirmed.