
    STATE, Respondent, v. GUFFEY, Appellant.
    (166 N. W. 636.)
    (File No. 4200.
    Opinion filed March 8, 1918.)
    1. Criminal Law — Tidal—Defendant's Exception to Charge, Specifications In, Sufficiency.
    Where, in a prosecution for larceny, defendant’s exception to the charge to the jury referred to its recital of a part of the evidence, for the reason “that such recital * * * is not complete and omits to recite any of the claims or evidence offered on the part of the defendant and calls attention and emphasizes the evidence, claims, and contentions on the part of the state and ignores the evidence of defendant’s witnesses,’’ held, 'that the exception is sufficient to present the question sought to he reviewed.
    2. Same — Larceny—Circumstantial Evidence — Instructions Embodying State’s Evidence), Ignoring Defendant’s — Reversable Error.
    In a criminal prosecution for larceny of horses, the evidence on both sides being wholly circumstantial, an instruction entering minutely into circumstances testified to by state’s witnesses, but wholly failing to state or refer to any matters testified.to by defendant or his witnesses in rebuttal or explanation of the state’s evidence, was prejudicial error, requiring a new trial.
    Appeal from Circuit Court, Me'aidie Oo-un-ty. Plan. John E. Hughes, Judge.
    The defendían!, Joshua Guffey,, waisi do-nyidbed of the crime of lairceny, amid he appeals.
    Reversed.
    
      Horny P. AUvater, and H. M. Lewis, for Aip-pellant.
    
      Clarence C. Caldwell, Attorney General, and A. P. Schnell, for Respondent
    (1) To point one -of the opinion, Appellant aited-: Gacfe: Giv. Pi-oc. Secs. 292, 257.
    (2) To p'ainit two of the opinion, Appellant cited: Biranltley v. State, (Ga.) 41 S. E. 695; People v. Murray, (Mich.) 40 N. W. 29; 12 Currant Law, p. 80; Blashfield on Instructions, Sec. 109.
    Respondent submitted .that: In view of the foot that the instructions mentioned in these assignments were. not instructions upon facts, -but merely -in explanation of the purpose 'and effect of circumstantial evidence, the •substantial rights of the ■defendant were nclb prejudiced thereby.
   SMITH, J.

Appellant was convicted of the larceny of seven bead of 'horses, belonging to one Gullikson. At the trial one of the animals was claimed to have been identified and traced to defendant's possession. Certain witnesses flor the state testified ito having seen defendant driving a bunch of horses resembling the horses, stolen, which ware delivered to one Ros.an.dar, who sold certain hoirses, not identified as ¡those stolen, to a government ¡horse buyer, who, it is claimed, rejected the one particular animal, la gray mane, o.n account of its color. The gray mare, while in Rosandar’s y'ardl, was' identified by Gullikson as one of the stolen .animals. The accused testified Ithat, about the time stated by the state’s witnesses, he was employed by neighbors Ho'uglh land Ono/ss, Who were Horse rafeers, to drive a small bunch of horses to RoSander’s place; that Rosandier was keeping 'and raising hoirses on Shares far. them',- that there ware one or two gray hoirses in the bunch, but that the gray mare found at Rosander’a wlas not one of them. In this statement he was corroborated by 'Cross and other witnesses.

The .evidence on behalf of the state is conceded to be wholly circumstantial. The printed abstract of evidence covers some 200 pages, and it is obviously impracticable to state it in detail. The court in its charge recapitulated with much minuteness piractic’aly every fiaot ail'd circumstance testified to by the state’s witnesses, stating them, to be the circumstantial evidence relied upon by the state to show the guilt of the accused. But the count wholly failed in -the charge to state o.r refer to any of the matters testified Ito by the defendant or any of his witnesses. After the Count had charged the jury, and before they retired, appellant Was required to enter hi.s exceptions ■ ito the charge, whereupon. He entered tine following exception:

“The defendant excepts to the .'instructions of the court wherein it .recites a .part of 'the evidence, for the reason that such recital of the evidence is molt complete, and omits to recite any of the claims. oir evidence -offered on the part of the defendant, and calls attention amid emphasizes the evidence, claims, and contentions oru the pant of the state, and ignores the evidence cif- the defendant's witnesses.”

It is insisted- by respondent’s counsel thalt this exception is insufficient to point out 'thle particular portion of the-charge excepted Ito. We are of the' view that the exception is sufficient to present tole .q¡ue'siüilon sought toi 'be reviewed. We are afeo of toe view ¡that the statement by toe court of facts and circumstances relied upon by the state to secure a conviction, without any statement of the facts amid circumstances in evidence relied upon by the accused in rebuttal Or explanation of the state’s 'evidence; was prejudicial .error which, requires a new trial. Waters v. State, 3 Ga. App. 649, 60 S. E. 335, is analogous to the present case, in that the evidence relied upon by the state wias wholly circumstantial. The dclurt saidl:

“The defendant in lids statement attempted to explain to. the jury lilis possession of the dlolt'hds and the gun. Surely it wias not fair foir Ithe court to isium up> the inferences of gu-iit which the jury might draw from these circumstances, without at ■the same time 'Calling the attention' of the jury to the explanation iclf these ■inloriminiating circumstances which the defendant ■had given in his statement. This explanation, if the jury believed it, was entirely consistent with innocence, and, if the court undertook ito sum up toe circumstances indicating guilt, it surely wias incumbent upon the court also' to sum up the corresponding circumstances which indicated innocence.”

In the case of Scott v. State, 4 Ga. App. 73, 60 S. E. 804, the same court held as stated in the syllabus:

“A summary lof all the evidence favorable to the state in a criminal case, and the ommission of a like statement of 'the evidence in behalf of toe -accused, is unfair to toe latter, and is -reversible error.”

In Hash v. Commonwealth, 88 Va. 172, 13 S. E. 398, that court held as stated in the syllabus:

“A charge which is based upon and recites toe evidence for the state is erronelous in failing to recite that -o-f the defense also, and to give an hypothetical alternative instruction based thereon.”

The matter of charging the jury in tibe present case is subject to the same criticism offered to tihe charge of the trial ooiulfc in State v. Yates, 99 Minn. 461, 109 N. W. 1070. In Daniel v. State, 115 Ga. 205, 41 S. E. 695, the count said:

“The Charge of the court was objedtiiOmablte, in that it was argumentative ¿and' strenuously pointed ouit and impressed upon -the jury numerous minute circurostenaes tending to implicate the accused. The theory of the state was repeatedly stated to the jury, With no doirrespondiimg statement of the points insisted on in behalf of the 'defense.”

See Baldwin v. State, 120 Ga. 188, 47 S. E. 558; Coman v. Wunderlich, 122 Was. 138, 99 N. W. 612.

The order amid judgment of the (trial court are reversed.  