Stalvey v. State

2 S.E.2d 762, 60 Ga. App. 41, 1939 Ga. App. LEXIS 495

Opinion

Broyles, C. J.

The defendants were convicted of simple larceny (hog-stealing), and their motion for new -trial was overruled. ' Conceding that the evidence authorized the jury to find-that the hog taken by the defendants was the property of' the’ prosecutor, the evidence for the defendants showed that they took the hog under a fair claim of right (believing it -to be the property of the father of one of the defendants), and that evidence was uncontradicted by any direct evidence in the case; and the circumstantial evidence, if any, tending to show that the taking of the hog was with, intent to steal, was insufficient to exclude every reasonable hypothesis save that of the defendants’ guilt. “In larceny the animus furandi must be not only alleged, but proved.” Musgrove v. State, 5 Ga. App. 467 (63 S. E. 538). The refusal to grant a new trial was error.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.