
    13048.
    Wynn v. The State.
    Decided January 18, 1922.
    Indictment for larceny; from Coweta superior court — Judge Boop. October 12, 1921. •
    .George Wynn was convicted as accessory after the fact, under an indictment for simple larceny, in which he and Demus Spear and others were joined as defendants, and which charged the stealing of a bale of cotton from B. L. Bedwine. From the testimony of Demus Spear it appeared that Spear stole the cotton from Rédwine’s pasture and put it in Wynn’s hen-house; that' previously Spear borrowed $15 from Wynn and talked to him about cotton, and Wynn said that if he had some he could sell it; that soon after the borrowing of the money Spear met Wynn and promised to pay it back in a short time, and said there was something he would have to make it out of. Spear testified: “ I says, ‘ George, if I don’t pay you that money I have got something I will have for you if you will sorter help me out of it.’ He asked me how. I told him I had something I could get to sell. . . I told George I wanted to borrow his mules and wagon, I was gwine after a bale of cotton. He told me he would see me in a few days and let me know. He said he was working them and needed them. He said he would let me have them . . when they wasn’t busy. I went back the next day, . . and he let me have the mules and wagon that night to go and get this bale of cotton. When I got this bale of cotton I carried it back to George’s house with the wagon and mules and put it in the hen-house at the place where George lives. . . It was somewhere about 12 o’clock when I got back there. My brother Robert went with me. . . When I come he was coming towards the lot, met me at the lot. I found the cotton in Mr. Ben Redwine’s pasture. I carried the cotton from the pasture to the wagon on a pair of trucks. . . I got the trucks at George’s home. . . He said he had a pair of trucks there if I wanted to use them. There was no understanding at all between me and George that we were to divide this cotton. We had no understanding about it at all, only he said when I got back he would do what' was right about it. I owed him $15. I left the cotton in his hen-house. That was the agreement between us. He was to sell the cotton., . . Me and George Wynn put that bale of cotton in -the hen-house. . . George didn’t encourage me at all to go off and steal any cotton. I did not tell him I was going to steal the bale of cotton. I just told him that I was going off after a bail of cotton.” Red-wine testified that in his pasture from which the‘bale of cotton was taken he saw on the next morning the tracks of little cotton trucks, two-wheel push trucks such as are used in stores and ware- ■ houses, and that the tracks went to and from where the cotton was to the road where the bale was loaded on a wagon. Others testified as to the tracks and as to finding the cotton in the defendant’s hen-house; and it was testified that when first asked who put the cotton in the hen-house he “ claimed not to know anything about it; later he said Demus Spear put it in there.” It was alsp testified that when search was being made for him at his home he was not found, but that later he gave himself up. In his statement at the trial he said that Demus Spear borrowed his wagon, saying “ he had some junk to haul,” and brought it back the next morning between dajdireak and sun-up, with a bale of cotton, which Demus said he wanted to leave there until it could be taken to Newman or Fairburn and sold; that Demus said he had won a cow, playing pot poker, and that “this colored man’s wife raised so much sand about it he told me to take this bale of cotton and sell it and get my $40 out of it.” The defendant said: “I told him all right he could leave it there. He just throwed it off, and I says, ‘You better not leave it in the lot; the cows will eat it up.’ He put it on the trucks and dumped it in the hen-house, and that was all I knowed about it.” The defendant said he was scared out of his soul by witnesses who came to his place; and he said: “ I didn’t run away. I went to Mr. Harry Hill’s and told him about these men looking for the cotton. Mr. Harry Hill says, ‘ You better wait until things get quiet if he is an officer, drunk, and got a big gun on him; I don’t know what he might do to a colored man.’ I was scared of him and stayed at home until the thing got through, and I come on down here.” It was testified that the defendant’s character was good, “way above the average negro of our country.” Demus Spear, in rebuttal, denied parts of the defendant’s statement.
   Luke, J.

The evidence did not authorize the defendant’s conviction of larceny, beyond a reasonable doubt and to the exclusion of every reasonable hypothesis save that of his guilt. It was therefore error to overrule the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.

A. H. Freeman, for plaintiff in error.

William Y. Atkinson, solicitor-general, contra.  