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STEWART v. THE STATE.
41388.
Larceny. Gwinnett Superior Court. Before Judge Pittard.
EBERHARDT, Judge.
1. Whether the prosecution is to be permitted to reopen its case to offer further evidence after both sides have closed is in the sound discretion of the court.
2. The charge given as to intent to steal was sufficient in the absence of a proper request for further elaboration.
3. "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code 38-109.
The accused was convicted of simple larceny of various tools used in building construction. Upon denial of his amended motion for new trial, he appealed.
In making its case the State relied in part on the fact that the accused failed "to deny the prosecutor's testimony that he had told three different stories about how the tools came to be missing." The prosecutor testified that on one occasion the accused stated, "I went to sleep . . . right down there in the parking lot at the hospital at Buford . . . and a policeman came down and woke me up . . . and I went on up there and we come on home," while at a later time he said that he went to sleep near the lake and there the policeman came by and awakened him, after which he returned to the hospital for his wife and then went home. On a third occasion the accused told the prosecutor that before going home he "went over to Mr. Robert's, and went to borrow some money to get the gas to come home on." The State also relied on a statement made by the accused to Victor Watson when he had been denied a raise that "he ought to get some of [the employer's] tools."
In defense, the accused asserted that he took possession of the truck around dusk, did not look to see if anything was on it, and that he did not know in fact whether there had been tools on it or not.
1. The accused in special ground 4 of his amended motion for new trial, contends that the court erred in "allowing the solicitor to reopen the evidence after both sides had closed, and produce additional testimony" as to value of the property. This was a matter of discretion on the part of the court, which does not appear to have been abused. Guthas v. State, 54 Ga. App. 217 (3) (187 SE 847); Smith v. State, 15 Ga. App. 713 (84 SE 159).
2. Special ground 5 of the amended motion "contends that the court erred in failing to fully charge the jury as to the law of intent to steal . . ." Included in the charge to the jury was the following: "Now I charge you, Gentlemen of the Jury, that a crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention . . . Intention shall be manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused . . . Simple theft or larceny is the wrongful and fraudulent taking and carrying away, by any person of the personal goods of another with the intent to steal the same." No further charge as to intent to steal was required in the absence of a request. Hill v. State, 45 Ga. App. 571 (165 SE 482).
3. The trial court erred in overruling the defendant's motion for new trial on the general grounds as the State's case did not meet the test as set out in Code 38-109. See Goss v. State, 82 Ga. App. 533, 534 (61 SE2d 570); Carr v. State, 72 Ga. App. 8, 11 (32 SE2d 914).
Reid Merritt, Solicitor General, contra.
Hancock & Wilbanks, W. P. Wilbanks, Jr., for plaintiff in error.
SUBMITTED JULY 7, 1965 -- DECIDED SEPTEMBER 8, 1965.
Friday May 22 21:18 EDT


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