Opinion
33583, 33584.
DECIDED JUNE 5, 1951.
Hog stealing; from Bulloch Superior Court — Judge Renfroe. February 20, 1951.
William J. Neville, W. G. Neville, for plaintiffs in error.
Walton Usher, Solicitor-General, contra.
1. The evidence amply supports the verdict.
2. There is no merit in the one special ground.
DECIDED JUNE 5, 1951.
The defendants were indicted jointly for hog stealing and tried separately. Both were found guilty. Both filed a separate amended motion for a new trial. The motions were overruled. The evidence is essentially the same in each case and the statement of each defendant varies from the other. The evidence of the State is essentially the same in each case. It involves the same transaction. We will write the two cases together.
The jury were authorized to find from the evidence for the State that the two defendants, traveling in an automobile truck together at about 8 at night, went into the field of the prosecutor, J. A. Hart, the owner of the hog. Hart lived about 1 1/2 miles from where the hog was taken. Lonnie Perkins, a laborer on Hart's farm, lived across the road from a well in Hart's field, a short distance from where the hog was taken. The defendants found the hog around the well where hogs were watered. They killed the hog, put it in a sack, then put the sack with the hog in it in the truck. Before they left, Lonnie Perkins saw them as they were coming from the well to the truck, and saw them put the hog in the truck. Perkins notified Mr. Hart, who in turn notified an officer. Perkins recognized the defendants. Mr. Hart and the officers began to follow the tracks of the truck in search of the defendants, and the hog. In following the tracks of the truck they found that the truck had stopped. Just off the road near where the truck had stopped they found the hog in the sack where it had been removed from the truck. The officers and Mr. Hart then went to the home of Mose Davis. They found there the truck of R. L. Lewis with blood in it. They found a knife in the possession of Mose Davis with fresh blood on it. The shoes of Davis were examined and were identified as being the same shoes which made the tracks in the field where the hog was killed.
The defendants in their statements denied taking the hog. Lewis in his statement acknowledged that the hog was loaded in his truck and was carried away and later taken from the truck and put in the woods. But he claimed that the hog was placed in his truck by Perkins who said it was Perkins' hog, and that later he and Davis became suspicious and removed the hog from the truck.
Davis substantially stated that he went by Perkins' house and Perkins had killed the hog and said it was his and that he wanted the defendants to take it away with them and that both of them became suspicious and removed the hog from the truck.
1. The indictment alleged the description of the hog to be "one red and black spotted Barrow hog." The verdict is attacked on the ground that there was a variance between the description of the hog in the indictment and the evidence. Mr. Hart, the owner of the hog, testified that the hog in question was a red and black spotted Barrow hog. There were other witnesses who, on cross-examination, testified as to the hog having red spots and black spots. Counsel for the defendants contend that to say that a hog is red and black spotted using the exact words of the indictments, is insufficient because the evidence should have gone further and shown that the number of red and black spots were approximately the same. In support of this contention counsel cite Paulk v. State, 5 Ga. App. 567-573 (3) (63 S.E. 659). This case is no authority for the contentions of counsel for the defendants. To the contrary, it supports the contentions of the State. There is no merit whatsoever in this contention. We are not unmindful that the defendants denied the theft and sought to set up that the whole prosecution was a scheme to entrap them for ulterior motives. In answer to this, it is only sufficient to say that the jury did not see fit to accept the contentions of the defendants. The trial judge was satisfied with the verdict and approved it. This court is without authority to set such verdicts aside.
2. The only other contention of the defendants is that after the court had charged in effect that the return of the true bill of indictment by the grand jury was not evidence of the guilt of the defendants, that they entered upon their trial with the presumption of innocence in their favor and that this presumption of innocence remained with them throughout the trial until met and overcome by evidence of the State sufficient to satisfy the minds and consciences of the jury of the guilt of the defendants of the crime charged in the bill of indictments beyond a reasonable doubt, the court should have gone further and charged the principle of law set forth in the Code, § 38-110 as to the sufficiency of the evidence to satisfy the minds and consciences of the jurors beyond a reasonable doubt. It is not contended that the court did not charge a correct principle of law, but the contention is based upon the presumption that the court should have charged an additional principle of law without a request.
When we view the whole charge of the court in the light of the evidence in the case, the court did not err in overruling the amended motion for a new trial for any of the reasons assigned. The judgment in each case is
Affirmed. MacIntyre, P.J., and Townsend, J., concur.