The evidence introduced by the state was sufficient, if believed beyond a reasonable doubt, to prove the corpus delicti under either count of the indictment, and hence the refusal of the general charge, as requested by defendant, and the overruling of the motion to discharge the defendant were free from error.
As to the refusal of the court to give, at the request of defendant, the general charge as to the larceny count, a sufficient answer is that the jury, by its verdict, acquitted the defendant of larceny, so that we need not pass upon any question relating solely to count 1 charging larceny.
Refused charge D ignores the first count of the indictment and was properly refused. Refused charge G is invasive of the province of the jury.
We have given careful consideration to the excerpts from the oral charge of the court to which exceptions were reserved. When these excerpts are read in connection with the entire charge, they are each without error.
Refused charge E ignores all of the issues involved in the second count, except that of concealment.
There is no such variance between the proof and the indictment as would authorize the court to discharge the defendant. Under Code, § 4905, the value of a horse stolen is immaterial, and for this reason charges I and 25 were properly refused.
The allegation of value in this indictment is a part of the description of the horse stolen. Proof of value therefore is relevant to prove identity. If the opinion as to value varies from that alleged in the indictment, the jury may become convinced of identity from other evidence.
It was relevant and admissible evidence that there were tracks at the lot from which this horse was taken. The place from which this horse was taken, at or near the time of the taking, is a part of the res gestæ, and therefore the jury is entitled to a full and minute description of the entire surroundings in any way pertaining to this case. The fact that the gate was open and that going into and coming out of the barn were human tracks recently made would tend to prove the corpus delicti. We also hold that a witness can say that "The tracks were fresh."
We have examined the various other exceptions to the introduction of evidence. The court in each instance ruled correctly. None of the exceptions raised any but the most elementary questions.
The fact that a large party of men went to the house of John Watkins looking for defendant was immaterial and irrelevant, and all this evidence was properly excluded.
The solicitor should not have commented upon the fact that defendant did not testify. The court so ruled and emphatically impressed the jury not to consider the statement. We think the court eliminated any injury resulting from the solicitor's remark.
We find no prejudicial error in the record and the judgment is affirmed.
Affirmed.