Harden v. State

78 S.E. 681, 13 Ga. App. 34, 1913 Ga. App. LEXIS 20

Opinion

Russell, J.

1. In the absence of an appropriate request, the court is not required, in the trial of one charged with the offense of larceny, to call the attention of the jury to specific facts or circumstances adduced in the evidence, which might indicate the innocence of the accused. For this reason the court did not err in omitting to call the special attention of the jury to evidence in the record tending to show'that the defendant’s possession of the hog in question was bona fide and under a fair claim of right.

2. Where the proof of guilt of one accused of crime depends wholly upon circumstantial evidence, it is error for the trial judge to fail to instruct the jury that to warrant a conviction on circumstantial evidence, the proof not only must be consistent with the hypothesis of guilt, but must exclude every other reasonable hypothesis than that of the guilt of the accused (Penal Code, § 1010). It is his duty so to instruct the jury even though there be no request to that effect. Riley v. State, 1 Ga. App. 651 (57 S. E. 1031); Hamilton v. State, 96 Ga. 301 (22 S. E. 528); Jones v. State, 105 Ga. 649 (31 S. E. 574); Toler v. State, 107 Ga. 682 (33 S. E. 629); McElroy v. State, 125 Ga. 39 (53 S. E. 759); Weaver v. State, 135 Ga. 320 (69 S. E. 488), and cit. Judgment reversed.