
    Hart v. The State.
    November 15, 1895.
    By two Justices.
    Indictment for simple larceny. Before Judge Reese. Glascock superior court. August term, 1895.
    Willis Hart was convicted of hog-stealing, and his motion for a new trial was overruled. The grounds of the motion are, that the verdict is contrary to law and -evidence; and that “the court erred, when requested orally by defendant’s attorney to charge the law of circumstantial evidence, in refusing to do so, and in stating in the presence and hearing of the jury that he did not think that was in it.” The charge of the court does not appear in the record.
    It appears from the testimony of the prosecutor, that the hog described in the indictment disappeared from his prp.miHP.fl on Tuesday, July 23. He saw it no more until the next Monday, when he was informed that it was on defendant’s place. He went there and found the hog barred up in a stall on defendant’s lot. This was late in the afternoon. Defendant was not there, but his family were. Prosecutor said nothing to them about the hog. He asked them where defendant was, and when he would return, to which they replied they did not know. He went off and procured a warrant which was executed by defendant’s arrest the next day, on which day'the hog reappeared about sunrise on prosecutor’s premises. Other witnesses were introduced, but there seems to be no evidence pointing more strongly to the guilt of defendant than what has just been indicated. In his statement he denied any connection with or knowledge of the hog or the theft, and introduced testimony tending to prove an alibi on the 23d of July, and accounting for his whereabouts on the day of arrest.
   Atkinson, J.

The evidence against the accused being entirely circumstantial, the court erred in stating in the hearing of the jury that the law of circumstantial evidence was not in the case, and in failing to instruct them concerning the legal rules applicable to evidence of this character. Judgment reversed.

James Whitehead, for plaintiff in error. W. M. Howard, solicitor-general, by Harrison & Peeples, contra.  