
    Barnard v. The State.
    Argued January 18,
    Decided February 12, 1904.
    Indictment for murder. Before Judge Parker. Tattnall superior court. December 5, 1903.
    
      H. B. B. Twiggs and W. T. Burhhalter, for plaintiff in error.
    
      John C. Hart, attorney-general, and B. T. Rawlings, solicitor-general, contra.
   Tubnee, J.

1. It is not ground for a new trial that the judge charged the jury as follows : “ By a reasonable doubt is not meant some vague or fanciful doubt, but such a doubt as arises from the testimony in the mind of a rearsonable man and leaves it hesitating, unsettled, and undecided.” Such a charge does not imply that a reasonable doubt may not arise as well from a lack of evidence as from facts brought to light which are consistent with the innocence of the accused, but is in accord with the law as heretofore laid down by this court. See Jesse v. State, 20 Ga. 156 (10), 168; John v. State, 33 Ga. 257; Long v. State, 38 Ga. 492 (8); Peterson v. State, 47 Ga. 525 (5); Malone v. State, 49 Ga. 211 (8); Tarver v. State, 95 Ga. 223 (2).

2. It was not error to charge the jury as follows : “You have heard the testimony, and it is for you to say whether this testimony connects the defendant with the commission of this crime ; whether he is guilty or not; whether there is any rational theory upon which you can base your verdict other than that of his guilt. If there is any rational theory upon which you can base a verdict and acquit this defendant, it is your duty to do so; if not, then it is your duty to convict.” This charge did not, in effect, “put the burden on the defendant'to show his innocence;” nor is it open to the criticism that it “made the jury hunt some rational theory upon which a jury could base a verdict of acquittal, when they do not hunt the innocent ■ in the trial of a case, but the guilty. ’ ’

3. “Where evidence, partly competent and partly incompetent, was offered and objected to as a whole, the illegal portion not being specified nor objected to separately, admitting all of such evidence affords no legal cause of complaint to the objecting party.” Smalls v. State, 99 Ga. 26 (2). See also Maynard v. Association, 112 Ga. 443; Southern Ry. Co. v. Gilmore, 115 Ga. 890; Gully v. State, 116 Ga. 527; Kelly v. Strouse, Id. 881; Walker v. Neil, 117 Ga. 739, and cit.

4. There being sufficient evidence to support the verdict of guilty, and the trial judge having approved the finding, this court will not overrule the judgment denying the accused a new trial.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.  