Criminal law. Burglary. Alibi. Before Judge Hillter. DeKalb Superior Court. September Term, 1878. Goldsmith was placed on trial for the offense of burglary in the night-time. The indictment charged that he 1‘ did break and enter the dwelling house of Edward B. Walker, with intent to commit a larceny, and after breaking and entering, was detected and prevented from committing the larceny.” He pleaded not guilty.
Good law ✅— No negative treatment on recordhow we know
Decided 1879-02-15
How this case has been cited
Cited by 7 later decisions — most recently July 1955
7 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶11. We need not decide whether the doctrine of '‘breaking out” is applicable to our statute, and to this indictment under it. The proposition of the court in charging the jury on the subject, may or may not be sound law in the abstract, but in a material part it is obviously inapplicable to the facts of the present case. There is no evidence showing, or tending to show, that the burglar entered the house by fraud, and concealed himself, or that he committed a larceny. The indictment itself negatives the commission of any larceny, and so, too, does the testimony. As to fraud, when we ask what fraud, when was it committed, *89how committed, and on whom ? there is nothing to return or suggest any answer. As to concealment, there is the same blank when we ask, "Where was he concealed, how, and for what length of time ? Indeed, let any question whatever be asked concerning fraud or concealment, and there is no response, and can be none, for there is no evidence about either fraud or concealment. It may be thought that this irrelevant charge is not cause for a new trial, and perhaps it would not be if the court had not mentioned the commission of a larceny in the very teeth of the indictment as well as of the evidence. Such an inadvertence indicates that the case was not tried with that deliberation which ought to be observed in the trial of so grave a felony. The tendency is prejudicial to the prisoner when the court refers to a crime as an accomplished fact, while the whole of the evidence goes merely to an attempt. It has the appearance of magnifying from the bench the enormity of the transaction.
¶22. On the subject of alibi the court charged correctly in substance. 59 Ga., 142. There was no suggestion that either the evidence or conviction of impossibility of the prisoner’s presence, had to be more strong or full than would be sufficient to set up any other fact in the case. To believe that presence by the prisoner was impossible, is not the same as for it to be impossible not to believe he was absent. In other words, because the attribute of impossibility must qualify the outward or objective fact, it does not follow that it must also qualify the inward or subjective state; and the charge does not intimate that the word impossible, or the idea for which it stands, applies to the latter at all.
