Opinion
32890.
DECIDED FEBRUARY 24, 1950.
Larceny; from Berrien Superior Court — Judge E. R. Smith. November 26, 1949.
L. J. Courson, H. W. Nelson, W. Edward Andrews, James K. Rankin, for plaintiff in error.
Edward Parrish, Solicitor-General, J. P. Knight, contra.
On the trial of a defendant charged with larceny, the evidence must be such that the intent to steal may be inferred therefrom. The evidence in the instant case was sufficient to authorize the jury to find that the defendant took cattle belonging to the prosecutor, but the circumstances under which he took them are fully as consistent with innocence as with guilt, and, therefore, not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. Hixon v. State, 38 Ga. App. 36 ( 142 S.E. 565).
DECIDED FEBRUARY 24, 1950.
Marvin Sirmans was indicted, tried and convicted in the Superior Court of Berrien County on a charge of cattle stealing. The evidence offered authorized the jury to find facts substantially: that J. D. Jones, the prosecutor, and his wife, Mrs. Annie L. Jones, had lived for some years near the Alapaha River in eastern Berrien County; that the defendant and Dewey Mathis lived in that vicinity; that a year or so previously one Randall McMillan had moved into the county, occupying land between that of Jones and Sirmans; that in March, 1948, after having turned his cattle out for the winter, McMillan wished to bring them in to market; that he agreed to pay the defendant and Mathis a reasonable price for rounding them up and bringing them in; that they rounded up some cattle in the McMillan mark, placed them in a pen on a river island and called McMillan down to identify them; that McMillan identified them as being the property of his wife, although he testified that "they didn't look exactly like the cows I had, but up through the winter and they were poor." There was no evidence, however, that he expressed any doubt to the defendant but that they were the cattle belonging to him and his wife. The jury was also authorized to find that he accepted the cattle; that the three men loaded them on a truck and took them to Tifton where they were sold and butchered; that the defendant and Mathis each received either $20 or $40 for their labor; that McMillan received either $271 or $371 for the cows but lost this money on the way home while in an intoxicated condition; that in August, 1948, six months after this transaction, the defendant inquired of another witness what mark Jones' cattle possessed; that McMillan and Mathis both testified they did not know the mark of Jones' cattle or that it was identical with that of McMillan; that the defendant stated likewise; that Jones' testified he did not know the mark of McMillan's cattle until after his cows disappeared, when he made inquiry concerning them; that at this time he inquired of Sirmans if he had seen his (Jones') cows, and Sirmans said nothing to him about the cows he had rounded up for McMillan.
The defendant was indicated jointly with McMillan and Mathis, and tried separately. To the verdict and judgment finding him guilty he filed his motion for a new trial, and the overruling of this motion is assigned as error. The special grounds of the motion being expressly abandoned by counsel, only the general grounds will be treated here.
It appears from the undisputed evidence that two adjoining landowners used identical marks for their cattle; that the cattle bearing this mark were rounded up by the defendant and identified by his employer as his own cattle (or his wife's cattle) and by him sold and that the defendant received a not unreasonable sum for the work he did in rounding up the cows and helping to take them to the market. As stated in Glaze v. State, 2 Ga. App. 704 ( 58 S.E. 1126): "The intention is always a material element in the offense of larceny; in this case it is especially material, in view of the fact that the taking was admitted, and the defendant's only defense was that there was no intention to steal." This principle of law applies to the instant case, and, where the facts are not in dispute, and where the evidence is at least equally as consistent with the innocence of the defendant as with his guilt, no other facts appearing from which the intent to steal may be inferred, the State has failed to prove one of the essential ingredients of the crime, the intent or animus furandi. On the trial of a defendant charged with the offense of larceny, the evidence must be such that the intent to steal may be inferred therefrom. The evidence in the instant case was sufficient to authorize the jury to find that the defendant took cattle belonging to the prosecutor, but the circumstances under which he took them are fully as consistent with innocence as with guilt, and, therefore, not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. See Hixon v. State, 38 Ga. App. 36 (supra).
The trial court erred in overruling the motion for a new trial.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.