Opinion
30474.
DECIDED MAY 23, 1944.
Larceny; from Hart superior court — Judge Edwards. January 29, 1944.
William L. Hailey, A. S. Skelton, for plaintiff in error.
R. Howard Gordon, solicitor-general, contra.
The accused was convicted of simple larceny. A ground of the motion for new trial complains of the following excerpt from the charge of the court: "The State contends in this case that the defendant is guilty. The State has introduced evidence tending to establish the fact that he is guilty of the charge in this indictment." The ground alleges that the charge was an expression or intimation of an opinion by the court as to what had been proved on the trial of the case, and that under it "movant was deprived of the right to have the jury pass on the question as to whether or not the State's evidence tended to establish his guilt."
The State's evidence was wholly circumstantial; and the charge, that "the State has introduced evidence tending to establish the fact that he [the defendant] is guilty of the charge in this indictment," was clearly, though, of course, inadvertently, an intimation of the court's opinion as to what had been proved in the case. And this error was not cured in any other part of the charge. The other special assignment of error is without merit; and the sufficiency of the evidence to support the verdict is not now passed upon.
Judgment reversed. MacIntyre and Gardner, JJ., concur.