Herges v. State

STONE, J. There is one portion of tbe charge given by tbe court, at tbe instance of tbe solicitor, upon which tbe judgment of conviction must be reversed. Tbe charge is in these words: “If tbe jury believed that tbe defendant knew of, and was concerned in, and aided in tbe stealing of the copper, as set out in the evidence, then they might find him guilty, although he was not actually present at tbe time of tbe larceny.” Tbe erroneous portion of tbe charge we have italicized. These are words of reference, and refer to tbe evidence as sustaining tbe facts supposed [46] in tbe preceding part of the charge. They assume that the evidence in the case “sets out” some one or all of the facts hypotheticated in the charge. If held to refer to the words immediately preceding them, they assume that “the stealing of the copper” was one of the facts “set out” in the evidence; and if held to refer to all the preceding part of the charge, they assume not only “the stealing of the copper,” but the additional facts, that the prisoner “knew of, and was concerned in, and aided in the stealing.” Under either construction, the charge is alike erroneous. Each of these questions should have been left to the jury. — Thompson v. The State, at the present term, and authorities there cited. We do not know that this question was considered in this view by the court below; but we have not felt at liberty to overlook it. "We have found no other error in the record. The judgment of the city court is reversed, and the cause'remanded.