Lewis v. State

166 S.E. 446, 46 Ga. App. 59, 1932 Ga. App. LEXIS 47

Opinion

Broyles, C. J.

I. In the light of the facts of the case, the excerpt from the charge of the court, complained of in the motion for a new trial, does not require a reversal of the judgment. In the excerpt the court charged as follows: “Now, the State contends that these two defendants went to the store of Mr. T. W. Hammock and broke and entered the store, as evidenced by a broken bar on one of the windows, and gained entrance in the store and stole therefrom flour and meal and sugar and other things named in the indictment, that they carried them away in a certain automobile. I am only stating the contentions of the State.” Now the State contended and T. W. Hammock testified that the burglars gained entrance to the store by prizing off a bar from a window, and the court’s reference to a broken bar was error, but an immaterial one. Nor was the charge subject to the criticism that it was an expression of an opinion upon the facts of the case. See Pritchett v. State, 92 Ga. 65 (7), 74 (18 S. E. 536).

2. The evidence clearly showing a breaking and entering, it was not error for the judge (especially in the absence of a request) to fail to charge the law of larceny from the house. Tarver v. State, 95 Ga. 222 (3) (21 S. E. 381); Bloodworth v. State, 9 Ga. App. 161 (2) (70 S. E. 892).

3. The verdict was authorized by the evidence.

Judgment affirmed.

Hooper, J., concurs. MacIntyre, J., not presiding.