Opinion
33858.
DECIDED APRIL 8, 1952.
Larceny; from Glascock Superior Court — Judge Perryman. October 1, 1951.
J. D. Godfrey, Casey Thigpen, for plaintiff in error.
J. Cecil Davis, Solicitor-General, contra.
1. Where, on the trial of one indicted for the larceny of an automobile, it appeared from the uncontradicted evidence that the defendant, a convict, in the custody of the warden of the Jefferson County Prison Camp, left the prison driving the truck which he is alleged to have stolen, with the permission of the warden, but in the custody of a guard, and it further appeared without contradiction that, while in Glascock County, the guard instructed the defendant to take the truck to a garage in a town nearby in the same county and have the brakes of the truck repaired, but instead of doing so the defendant drove into Greene County, a considerable distance away, where, after having burned out the bearings in the truck, he abandoned it, such evidence was insufficient to warrant a conviction for simple larceny, there being no evidence from which it could be inferred that the defendant intended to steal the truck at the time he obtained possession thereof, nor evidence from which it could be inferred that he obtained possession of the truck by trick or fraud with intent to appropriate it to his own use. Lanier v. State, 17 Ga. App. 261 ( 86 S.E. 417); Mobley v. State, 114 Ga. 544 ( 40 S.E. 728); Fitzgerald v. State, 118 Ga. 855 ( 45 S.E. 666); Abrams v. State, 121 Ga. 170 ( 48 S.E. 965); Watson v. State, 6 Ga. App. 801 ( 65 S.E. 813); Pittman v. State, 13 Ga. App. 705 ( 79 S.E. 915); Smith v. State, 14 Ga. App. 17 ( 80 S.E. 22).
2. Since the case must be sent back for a new trial, it is unnecessary to consider at this time the assignment of error upon the court's failure to charge on an alleged defense of the accused.
Judgment reversed. Gardner, P.J., and Townsend, J., concur.