
    31199.
    Coney v. The State.
    Decided April 4, 1946.
    
      W. A. Dampier, for plaintiff in error.
    
      W. W. Larsen, solicitor-general, contra.
   MacIntyre, J.

The motion for a new trial contains the usual general grounds only. The defendant was convicted of simple larceny (hog stealing). The evidence tending to connect him with the offense was wholly circumstantial and was insufficient to exclude every other reasonable hypothesis except that of the guilt of the accused. His conviction was therefore contrary to law and the evidence, and the denial of a new trial was error. The facts in this case are not as strong against the defendant as those in the companion case of Dupree v. State, 73 Ga. App. 515 (37 S. E. 2d, 235), where this court held that the evidence did not authorize the verdict. The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Gardner, J., concur.

Gardner, J.,

specially concurring. I dissented from the opinion of my distinguished brethren in the case of Dupree v. State, supra, because I was then and am now of the opinion that the evidence was sufficient to convict. In the instant case, however, although the defendant was generally indicted with J. T. Dupree and Dupree’s brother, I do not think that the evidence was sufficient to convict Coney. There are many material differences in the evidence as applied to the defendants, so I concur in the reversal in the instant case.  