Davis v. State

113 S.E. 115, 28 Ga. App. 772, 1922 Ga. App. LEXIS 853

Opinion

Broyles, O. J.

The evidence relied upon to connect the defendant with the offense charged was entirely circumstantial, and, though, consistent with his guilt, was not sufficient to exclude every other reasonable hypothesis. The court, therefore,' erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Bennett testified: “ I was sort of even with the block at the time the cars were captured. I saw this defendant Henry Davis in the front car that was captured. When the front car was approaching the block and about the time it made its stop, there was a bottle of whisky thrown from the car, . . but I don’t know who threw it out; . . the front car didn’t have whisky. . . I did not see this defendant with any liquor at all; I couldn’t swear who threw the bottle of whisky from the car; the other car, with the whisky, was some three or four hundred yards behind the front car; . . I did not see anybody flash any light or give any signal from the front car to the rear; I was where 1 could see. As well as I recollect, . . Bichardson was driving the front car, and not the defendant.

The defendant, in his statement at the trial, said that Bichardson came through Stone Mountain in a car, going to a sister and brother-in-law, and asked him to go in the ear with him; that he did so, and on their way back""these men’" stopped them; that if there was any whisky in the car, or if Bichardson had any, he did not see it; that he (the defendant) did not have any, and did not see any from the time he left home until they got back.

John T. Dorsey, J. P. Fowler, for plaintiff in error. John S. Wood, solicitor-general, Lindley W. Gamp, contra.