Wilkes v. State

75 S.E. 443, 11 Ga. App. 384, 1912 Ga. App. LEXIS 413

• Court: Court of Appeals of Georgia
• Decided: July 23, 1912
• Docket: 4245
• Status: Published

Opinion

Hill, C. J.

1. In a prosecution for simple larceny the evidence tended to

show that recently after the offense was committed the stolen property was found in the house where the accused lived with others. It was not shown that the accused had exclusive possession, either of the stolen property or of the house where the property was found. It was error, therefore, for the trial judge to charge as follows: “If you find the offense alleged in the indictment was committed by some one, and that after the commission of the offense, or at the time of the commission of the offense, the goods, or some portion of them, were found in the recent possession of any one, such possession, unless explained to the satisfaction of the jury, is a circumstance which the jury may consider in determining the guilt or innocence of the accused.” .The fact that the eggs (the property stolen) were found in the possession of some one, and that this possession was not explained to the satisfaction of the jury, does not raise any inference that the accused was the thief. This inference arises only when the evidence shows recent possession in the accused, not explained to the satisfaction of the jury.

2. It is erroneous to charge the jury, in effect, that if they can not reconcile the testimony of the witnesses so as not to impute perjury to any one, they would have the right to believe the witness who had the best opportunity to know the facts testified to by him, without adding the qualification that the witnesses should be of equal credibility. Lawrence v. State, 10 Ga. App. 786 (74 S. E. 300).

3. The evidence tending to prove the guilt of the accused was not clear, strong, or conclusive; and for this reason the errors noted above demand another trial. . Judgment reversed.