Opinion
37556.
DECIDED FEBRUARY 10, 1959.
Eavesdropper or "Peeping Tom" on premises of another. Chattooga City Court. Before Judge Espy. November 29, 1958.
Cook Palmour, Bobby Lee Cook, for plaintiff in error.
Earl B. Self, Solicitor-General, contra.
The evidence here, although circumstantial, excludes every other reasonable hypothesis save that of the guilt of the accused. Accordingly, the motion for a new trial on the general grounds was properly denied.
DECIDED FEBRUARY 10, 1959.
Billy Dukes was tried and convicted in the City Court of Chattooga County on an accusation based on Code §§ 26-2001 and 26-2002, commonly known as the "Peeping Tom" sections. The jury returned a verdict of guilty. A motion for new trial on the general grounds only was denied, and on that judgment the case is here for review.
The evidence shows substantially that the prosecutrix, Mrs. Mozelle Williams, stopped at a restaurant where her son worked at which time she saw the defendant and spoke to him; that she left the restaurant, returned home, took a shower and put on shortie pajamas and while she was thus dressed and while she was doing some writing, her dog started barking. The prosecutrix moved to turn off a light and happened to notice that her dog was running toward the window, whereupon she indicated that the dog should chase the person at the window, and the dog made a lunge; that she heard the defendant jump from a stepladder near the bedroom window which window was adjacent to the bathroom; that the defendant ran from the back of the house across the lawn, being visible at this time to the prosecutrix, then the defendant ran on down the street. At this time the prosecutrix called a neighbor and just as this neighbor got about half way down his driveway the defendant drove by at a high rate of speed. At that time he was driving a car and was recognized by the neighbor. The prosecutrix and the neighbor immediately went to the residence of the defendant and questioned him with regard to his Peeping Tom activities. At first the defendant denied it, but when told that the victim had his tag number he admitted going to her house, apologized, and stated that he only went there to talk. There was no explanation as to how long he had been there or why he was at the back door and he said he didn't know what made him peep in on the prosecutrix. The evidence shows that the defendant had put up sheet rock some time previously at the home of the prosecutrix, which indicated that he was familiar with the surroundings.
The evidence, which is substantially set out hereinabove, sustains the verdict found by the jury. The defendant contends that there are two theories involved, one of guilt on the part of the defendant and the other consistent with the innocence of the defendant, and that in such a situation the court must adopt the theory of innocence. Our attention is called to Carter v. State, 35 Ga. 263; Dorsey v. State, 108 Ga. 477, 479 ( 34 S.E. 135); Patrick v. State, 75 Ga. App. 687
(44 S.E.2d 297) and Scroggs v. State, 94 Ga. App. 28 ( 93 S.E.2d 583). It is true that this is the correct law of this State. However, the evidence as shown by the record in the instant case (set out hereinabove) does not create any reasonable hypothesis save that of the guilt of the defendant, thus excluding the theory of the innocence of the defendant. The evidence for the State overwhelmingly supports the verdict as applied to Code §§ 26-2001 and 26-2002. See also Mosely v. State, 46 Ga. App. 44 ( 166 S.E. 455) and Butts v. State, 97 Ga. App. 465 ( 103 S.E.2d 450).
The court did not err in denying the motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.