
    7182.
    Wheeler v. The State.
   Wade, J.

1. In an indictment for cattle-stealing the following description of the animal alleged to have been stolen is sufficient, namely: “A certain black and white milk cow of the value of $25, of the personal goods of W. G-. Aeree.” “It is a matter of common knowledge, of which the court- will take judicial cognizance, that a cow is a female animal, is a horned animal, and has cloven hoofs; and . . the larceny of a cow is therefore' within the purview of section 159 of the Penal Code” (of 1895); Penal Code of 1910, § 156; Gibson v. State, 7 Ga. App. 692 (2, 3) (67 S. E. 838). The court did not err in overruling the demurrer to the indictment.

2. There is no merit in the exception to an excerpt from the charge of the court touching the law as to reasonable doubt of guilt. The instructions on this subject, taken as a whole, were correct and sufficiently full.

Decided April 24, 1916.

Indictment for larceny of cow; from Morgan superior court— Judge Park. December 4, 1935.

M. C. Few, for plaintiff in error.

J. F. Pottle, solicitor-general, contra.

3. Without regard to whether or not the alleged newly discovered evidence is merely cumulative, the trial judge did not err in refusing to grant a new trial because of such evidence, in^the absence of affidavits showing diligence on the part of the movant and his counsel, etc., as required by law. Civil Code, § 6086; Speer v. State, 10 Ga. App. 817 (74 S. E. 95).

4. Considering the charge of the court as a whole, the jury were sufficiently instructed as to the verdicts that they might return, and as to the form of their verdict in the event they had a reasonable doubt of the guilt of the defendant.

5. Where there is some evidence from which the guilt of one accused of crime can be legitimately inferred, it is entirely within the province of the jury to draw that inference.

Judgment affirmed.  