Opinion
31540.
DECIDED MAY 6, 1947.
Burglary; from Haralson Superior Court — Judge Mundy. December 18, 1946.
Claude V. Driver, for plaintiff in error.
Hal C. Hutchens, Solicitor-General, W. A. Foster Jr., contra.
While it is the rule of this State that when the guilt of the accused depends upon the possession of an article, alleged to have been contained in the house burglarized, it is essential that the identity of the articles found in his possession with the articles which are alleged to have been stolen shall be established beyond a reasonable doubt ( Evans v. State, 60 Ga. App. 26, 2 S.E.2d 745; Stewart v. State, 9 Ga. App. 501, 71 S.E. 755; Rayfield v. State, 5 Ga. App. 816, 63 S.E. 920; Williams, v. State, 33 Ga. App. 347 (2), 126 S.E. 267; Carter v. State, 57 Ga. App. 180, 194 S.E. 842; Blocker v. State, 57 Ga. App. 182, 194 S.E. 910) — the conviction in the instant case is not solely dependent upon such identity. There are other facts and circumstances pointing to the defendant's guilt. On the same night, a store in the same town and across the road from this store was burglarized. The marks on the two doors appear to have been made by the same instrument used in breaking them open. There are three stores in the town, one belongs to the uncle of the defendant, and it was the only store not burglarized that night. The defendant, at 8 or 8:30 on the morning following these burglaries, was seen with certain goods, in some sacks, in an automobile, which he was driving in the vicinity of Ben Hill, in Fulton County. These sacks were found to contain certain articles, positively identified by cost marks entered thereon, as coming from the Stevens' store. In the same sacks were found goods, corresponding in quantity, variety, and brand, with those missed from the Carroll store. Jordan v. State, 119 Ga. 443 (2) ( 46 S.E. 679). Immediately after these burglaries the defendant left the State and was found in South Carolina and returned to this State to answer these charges. In our opinion the evidence authorized the verdict. The special assignments contained in the amended motion for a new trial are without merit. Judgment affirmed. MacIntyre and Gardner, JJ., concur.
DECIDED MAY 6, 1947.
Joel Gober and J. C. Damron were jointly indicted for the burglary of the storehouse of J. O. Carroll, said indictment charging the defendant with the breaking and entering of such storehouse with intent to commit larceny, and after said breaking and entering, did then and there, unlawfully, privately, wrongfully, and fraudulently, take and carry therefrom, with the intent to steal the same, $8 in lawful United States money, 5 cartons of Lucky Strike cigarettes, 3 cartons of Chesterfield cigarettes, 1 carton of Camel cigarettes, 1 hawkbill pocketknife, 1 switch blade celluloid handle pocketknife, 3 boxes, 100 squares each, of Bloodhound chewing tobacco, of the value of $25, and of the personal goods of J. O. Carroll. Gober was placed on trial and convicted of the offense charged. His motion for new trial was overruled and he excepted to that judgment.
The evidence against the defendant was purely circumstantial. It appears from the brief of evidence, that on the 26th day of February, 1946, it was discovered that both the storehouse of J. O. Carroll and that of L. E. Stevens had been broken open on the previous night. It appeared from the marks on the doors of the two stores which were burglarized, that some instrument had been used to pry them open. The instrument made marks such as might be made by a large screwdriver or tire tool, or other like instrument. The marks on the two doors were similar. The stores are located across the road from each other, in Draketown. About 8 or 8:30 on the morning of February 26th, the defendant and J. C. Damron were seen at Ben Hill, in Fulton County, in possession of certain goods, identified as coming from the Stevens' store and with cost marks thereon. In the same sacks with these goods, identified as coming from the Stevens' store, there were found Lucky Strike, Camel, and Chesterfield cigarettes, and Bloodhound chewing tobacco, corresponding in quantity, variety and brand, with those missing from the Carroll store, after the burglary. It also appears, from the evidence, that there were three stores in Draketown, property of J. O. Carroll, L. E. Stevens and J. R. Reeves, and that J. R. Reeves is an uncle of the defendant Gober. The Reeves' store was not burglarized. Immediately after these burglaries the defendant left the State of Georgia and was later apprehended by the Georgia authorities in South Carolina and brought back to this State on these charges.