
    8878.
    Kelley v. The State.
   Geoege, J.

1. Where the evidence against the accused is entirely circumstantial, it is the duty of the trial judge, whether so requested or not, to instruct the jury on the rule of law applicable to such evidence, as laid down in section 1010 of the Penal Code (1910). Harris v. State, 18 Ga. App. 710 (90 S. E. 370), and cases there cited.

2. It is unnecessary to consider the assignments of error based upon certain excerpts from the charge of the court, since the errors in the charge will hardly occur upon a second trial of the case.

3. There was no error in rejecting the evidence set out in the 3d ground of the amendment to the motion for a new trial.

4. We express no opinion upon the sufficiency of the evidence. Eor error in failing to charge the law of circumstantial evidence, as indicated in the first division of this decision, the motion for a new trial should have been granted.

Decided September 13, 1917.

Accusation of misdemeanor; from city court of Polk county—■ Judge John 3L Davis. May 14, 1917.

Irwin & Tison, Fielder & Fielder, for plaintiff in error.

J. A. Wright, solicitor, F. S. Ault, contra.

Judgment reversed.

Wade, O. J., and LuJce, J., concur.  