Fortson v. State

53 S.E. 767, 125 Ga. 16, 1906 Ga. LEXIS 15

• Court: Supreme Court of Georgia
• Decided: March 22, 1906
• Status: Published

Opinion

Atkinson, J.

1. Where, upon the trial of one accused with the offense of carrying concealed weapons, it is sought- by the State to make certain the time of the commission of the offense, not by proving the commission upon the dates specifically alleged in the accusation, but by showing its commission to have been coincident with the happening of a certain other event, occurring at a certain place, and the defendant, in reply, undertakes to establish an alibi, the range of the evidence in support of the alibi need be such only as will exclude the possibility o£ defendant’s presence at the particular place at the time of the happening of the particular event relied upon to establish the time of the commission of the offense; and a charge of the court upon the subject of alibi, which imposes upon the defendant the burden of accounting for . his presence during- every day for two years next preceding the date of the accusation, is erroneous.

2. The charge on the subject of the prisoner’s statement was modeled somewhat on the charge dealt with in Hackett v. State, 108 Ga. 46, and while not approved, yet, under the ruling- in that case, is not sufficient ground for a new trial.

Judgment reversed.

All the Justices concur.