Dukes v. State

107 S.E.2d 727, 99 Ga. App. 81, 1959 Ga. App. LEXIS 786

Opinion

Gardner, Presiding Judge.

The evidence, which is substantially set out hereinabove, sustains the verdict found by the jury. The defendant contends that there are two theories involved, one of guilt on the part of the defendant and the other consistent with the innocence, of the defendant, and that in such a situation the court must adopt the theory of innocence. Our attention is called) to Carter v. State, 35 Ga. 263; Dorsey v. State, 108 Ga. 477, 479 (34 S. E. 135); Patrick v. State, 75 Ga. App. 687 (44 S. ) and Scroggs v. State, 94 Ga. App. 28 (93 S. E. 2d 583). It is time that this is the correct law of this State. However, the evidence as shown, by the record in the instant case (set out hereinabove) does not create any reasonable hypothesis save that of the guilt of the defendant, thus excluding the theory of the innocence of the defendant. The evidence for the State overwhelmingly supports the verdict as applied to Code §§ 26-2001 and 26-2002. See also Mosely v. State, 46 Ga. App. 44 (166 S. E. 455) and Butts v. State, 97 Ga. App. 465 (103 S. E. 2d 450).

The court did not err in denying the motion for a new trial.

Judgment affirmed.

Townsend and Carlisle, JJ., concur.