Opinion
34109.
DECIDED JULY 3, 1952.
Burglary; from Whitfield Superior Court — Judge Paschall. March 11, 1952.
F. Kelly McCutchen, for plaintiff in error.
Warren Akin, Solicitor-General, contra.
1. The evidence amply sustains the verdict.
2. Special grounds 1, 2, and 3 are without merit for the reasons stated in the body of the opinion.
DECIDED JULY 3, 1952.
Jack Townsend was convicted of burglary on an indictment charging him and Ed Stevenson with breaking and entering the storehouse of McCamy Lumber Company. It is alleged that the defendant broke and entered with intent to steal the following property to wit: "One steel safe weighing 220 pounds, 30" in height, 20" wide and deep, painted brown in color; one silver dollar dated 1922; two one hundred dollar bills; thirty-five dollars in change; one stock certificate book of Smith and Wrinkle Construction Company; Accounts Receivable book of McCamy Lumber Company of the value of $300.00." He filed a motion for a new trial on the usual general grounds, and thereafter by amendment added three special grounds. In due course the motion was overruled, and the defendant assigns error on this judgment.
The evidence shows substantially the following: The witness McCamy testified: that he operated the McCamy Lumber Company; that his place was broken into about May 27, 1951; that the safe and articles mentioned in the indictment were taken from the building; that witness on the morning of Sunday, May 27, was leaving to go out of town; that he drove by the lumber yard between 6 and 6:30 o'clock in the morning; that the police were there; that the building had been broken into; that the entrance was through a window on the side of the building; that the window (pane) was broken out; that all of the doors were left open; that the safe and its contents had been carried off; that the safe weighed approximately 220 pounds; that witness turned the situation over to the police with instructions to take such steps as they thought necessary; that witness left town; that it was not known whether the store was broken into early Sunday morning or late Saturday night; that it happened after dark on Saturday night and before daylight on Sunday morning; that it had rained sometime around 9 Saturday night; that the rain washed away all tracks on the lumber yard; that the "next morning we discovered fresh car tracks on the lumber yard, which occurred during the night after the rain"; that the store was closed around 12 noon on Saturday; that witness had pictures made of the car tracks; that on Exhibit No. 1 those tracks were shown coming in from the back of the lumber yard; that on State's Exhibit No. 3 is given the overall picture (witness explaining the streets, etc., with relation to the lumber yard); that the first tracks of the motor vehicle were barricaded to preserve the tracks; that the tracks which were barricaded were the only tracks when witness arrived around 6 Sunday morning; that whoever carried off the safe evidently pulled "in here" (indicating from the picture) around behind that barn, to be hid from the road; that the safe was pulled down and carried from the front of the building to the back. Witness explained from pictures of the treads on the tires which made the barricaded car tracks. One picture was of the left front tire and the other of the right front tire. As far as witness knew, a one hundred dollar bill and a silver dollar were all the goods which had been recovered; that they were brought to him by the sheriff; that the silver dollar bore the date of 1922. Witness did not know whether or not the silver dollar or the one hundred dollar bill were his. Witness further testified that he inspected the windows when he closed at noon on Saturday, and that no window pane was broken then; that the window in question is located in the warehouse back of the lumber yard office; that the windows in that vicinity were never opened; that some of the doors were open at one time or another during Saturday; that, when the witness left the building on Saturday, he went out the front door; that, when he returned on Sunday morning, the front door was open; that the lumber yard authorities maintained a watchman at the place, but that the watchman was not full time; that he just lived next door and more or less looked after the building, but he was not on the payroll; that he made rounds to see that the doors were locked; that the watchman last reported to witness around 11 Saturday night; that the watchman has no way of going into or out of the building; that when the witness left the building on Saturday, all of the windows and doors were closed and locked; that the officers brought up the defendant's motor vehicle and compared the tires of that motor vehicle with the tire marks that had been made in the lumber yard. Witness showed to the jury Exhibit No. 5 as to the imprint taken off of the defendant's motor vehicle. Witness further testified that the wife of the defendant came to the sheriff's office and agreed to take the defendant's motor vehicle back to the lumber yard and take an imprint off of it; that the imprints were made off the defendant's motor vehicle by putting a paper on the tires and making an imprint on the piece of paper; that Exhibit No. 5 is of the left front tire, and Exhibit No. 6 is of the right front tire; that the tire imprints as far as could be determined were the same on the defendant's motor vehicle as the tracks found in the lumber yard. Witness said they were the same. Witness further testified that the tires made the same marking on the ground as on the imprints. Witness explained as to how he happened to have a silver dollar of the year 1922, in effect, as follows: that Mr. Smith, connected with the Smith Wrinkle Construction Company had been carrying this silver dollar in his wallet; that McCamy Lumber Company had gotten a silver dollar dated 1923 in from some customer; that Mr. Smith had been trying to get a silver dollar made in 1923, the year of his birth, and that Mr. Smith swapped the 1922 silver dollar which he had in his pocket for the 1923 silver dollar, and this is why the 1922 silver dollar happened to be in the safe; that the silver dollar which Mr. Smith had been carrying for five or six years was in the safe of McCamy Lumber Company; so far as witness remembered, those were the only two silver dollars witness had had since witness had been in business.
George Ridley testified for the State substantially: that he knew the defendant, Jack Townsend; that on Sunday, May 27, he had occasion to see the defendant; that the defendant had a one hundred dollar bill; that witness got the one hundred dollar bill in the following manner: the boy, Ed Stevenson, went to the house of the witness on Sunday morning around 7 and called; that witness was building a fire; that Ed came on in the house; that Ed was drinking heavily; that Ed offered witness a drink, but witness wouldn't have any; that Ed claimed to have some beer down at the car; that Ed went down to the car and brought some beer to the house; that defendant was "down at the car"; that Ed and the defendant came in; that the defendant kept blowing the horn and wanting to go; that Ed invited the witness to go down to the car where the defendant was, so witness and Ed walked down to where the defendant was; that Ed wanted to stay, and the defendant wanted to go; that the defendant wanted to know if there was any chance to get change for the one hundred dollar bill; witness informed the defendant that he didn't have that much money, but the defendant kept on wanting to go, and Ed didn't want to go with him, and the defendant took the one hundred dollar bill out of his bill folder and Ed had sixty-five dollars and witness had thirty-five dollars, and they gave all that to the defendant for the one hundred dollar bill; that witness gave the one hundred dollar bill to the sheriff; that the defendant stayed at the house of the witness about thirty or forty minutes; that Ed stayed four or five hours; that the defendant got out of his car and walked around the truck of witness which was parked nearby in the driveway; and that it was beside the truck that the defendant got the change for the one hundred dollar bill.
Sheriff Vining testified substantially as follows: that he had occasion to investigate the burglary of McCamy Lumber Company; that he had received information and was looking for Ed Stevenson and the defendant; that witness had information that the defendant and Ed Stevenson went over to George Ridley's place, or had been there; that witness sent his deputies to Ridley's place, and they "picked up" Ed Stevenson; that witness met the deputies and they had Ed Stevenson in charge; that the sheriff met Ridley driving a truck; that the sheriff had complaints about drinking at Ridley's house; that the sheriff searched Ridley, and the one hundred dollar bill was taken out of Ridley's pocket; that an hour or two or three later the sheriff and his deputies were still looking for the defendant; that they found him at his home in his automobile asleep; that the defendant was arrested and, when he was searched, the officers got the 1922 silver dollar from his person; that the sheriff inquired of Stevenson and Clifford (?) about the one hundred dollar bill, and they both denied having any one hundred dollar bill; that the sheriff asked the defendant where he got the one hundred dollar bill, and the defendant stated he was there about 7 or 7:30 o'clock that morning in a crap game. Witness further testified that in the investigation the sheriff got the defendant's automobile; that his wife (the defendant's wife) drove it to the McCamy Lumber Company, and the sheriff and others made the tracks referred to by the witness McCamy; that the sheriff examined the tracks that were made on the ground, and stated that in his opinion the two front tires of the motor vehicle of the defendant made the tracks that were at the lumber yard; that the sheriff didn't hold Ridley on suspicion of burglary; that he got the one hundred dollar bill from Ridley, and Ridley told the sheriff that he got it from the defendant; that Ridley explained to the sheriff how he got the one hundred dollar bill. The sheriff gave Ridley a one hundred dollar bill for the one hundred dollar bill he got from Ridley.
Mr. Smith testified: that he was in the trucking business and had an office in the McCamy Lumber Company building; that he recalled the occasion when the lumber yard was burglarized; that witness explained that one Saturday afternoon at the lumber company office when a customer paid to Mr. McCamy the 1923 silver dollar, and that witness collects silver dollars and, since he didn't have one dated 1923 and did have one made in 1922, witness and Mr. McCamy swapped silver dollars; that witness couldn't positively identify the 1922 silver dollar; that witness carried the 1922 silver dollar for about five years; that he went to his office at the lumber yard on Sunday morning to get a typewriter and saw several men around the building; that witness looked around in his office, which was adjoining the office of the lumber yard; that he walked into the office of the McCamy Lumber Company and noticed that the safe was gone; that witness observed the taking of the pictures of the tracks of the motor vehicle on the lumber yard; that he helped compare the tracks with the motor vehicle tires of the defendant; that there were good prints on the lumber yard; that witness examined the tracks and testified that they matched perfectly; that the treads matched, and there was one slick tire on the defendant's car and the slick tire matched on the right; that in the opinion of the witness the defendant made the tracks on the lumber yard; that the car was not driven there on Sunday; that Sunday was the day the impression was made on the tires, but Sunday was not the day "We took the blueprints off the tires"; that the blueprints were taken off the tires on Monday. Witness further testified that he has an interest in the McCamy Lumber Company and runs the Smith Wrinkle Construction Company; that the window that was broken on Sunday morning was in good condition on Saturday when witness left about 1 p. m.
Said pictures were introduced without objection as exhibits: a plaster of Paris print of the tires (State's Exhibit No. 4), and prints of the tires of the defendant's motor vehicle (Exhibits No. 5 and No. 6). A one hundred dollar bill was introduced and a silver dollar was introduced, which was minted in 1922.
The defendant offered no testimony, but made the following statement: "I was in town that Saturday night until about 9 o'clock, and I went from there to the Home Plate and from there to Murph Ridley's, and I left there around 11 o'clock and went to Tennessee . . I got twenty gallons of whisky and brought it back and sold it afterwards; I got up there about 12 o'clock and brought it back from up there about 4 o'clock the next morning. I came down Underwood that morning. . . Mr. Vining said about me claiming that silver dollar — there were three boys out there shooting dice; I stopped and joined them and won that silver dollar and a ten and a one. I came from out there over to the Home Plate around 7 or 7:30 or maybe 8 o'clock and stayed with Ed a while. He wanted to go and get some beer. I took him and got some beer, and when we came back he wanted to go to George Ridley's. I took him over there and we went in the house, both of us. George said I didn't go in, but I did, and we stayed over there, I guess, about thirty or forty minutes. I told him I was going on home, and he said he would just stay over there, and that one hundred dollar bill — I didn't see no one hundred dollar bill, not at all. He said he gave me change for it, but he didn't and I went from there by my sister's and went right straight on home. It was about 11 o'clock then. We didn't go to George's until about 9 or 10 o'clock in the morning."
1. We have set out the evidence somewhat in detail. It speaks for itself. To our way of thinking it sustains beyond peradventure the verdict of guilty as to the general grounds. Regarding some phases of the testimony, we will discuss them further as we take up the special grounds for consideration.
2. Special ground 1 complains of the charge of the court, as follows: "I charge you that the possession of goods by a person, which goods have recently been stolen, where that possession is not satisfactorily explained, is a circumstance for the jury's consideration, and may be sufficient to authorize a conviction." Error is assigned on this excerpt: (a) Because the charge expresses an opinion that the goods in question were, in fact, stolen; (b) that nowhere in the evidence is it shown that the particular articles alleged to have been stolen — referring, of course, to the 1922 silver dollar and the one hundred dollar bill — were identified as the same articles admitted in evidence at the trial of the case; (c) that various excerpts from the charge of the court confused and misled the jury. These excerpts were in substance as follows: (1) the object of all legal investigation is the discovery of the truth; (2) the charge of direct and circumstantial evidence; (3) the definition of burglary and the punishment therefore; (4) the possession of recently stolen property not satisfactorily explained by the defendant; (5) the charge of reasonable doubt. In this connection it is contended that the jury were misled. The jury should have been instructed that the defendant could be acquitted "unless the articles were sufficiently identified or linked with the offense with some positive degree of certainty rather than just the apparent suspicion that seemed to have been stronger than evidence." It is insisted that, in the face of such charge, the defendant was left only to his explanation of possession which could have been, in effect, a definite impossibility as to the one hundred dollar bill and a strong improbability as to the silver dollar. These are the only two articles involved here. In this ground the charge of the court is not attacked as being incorrect as an abstract principle of law. As to what inextricable web such evidence weaves around the defendant regarding the impossibility and the improbability of his being able to make a satisfactory explanation to the jury as to his possession of the articles — that is not for this court to fathom. It was for the jury to decide that question. We are inclined to the belief, under the facts of this case, that the defendant could not, and did not extricate himself by a satisfactory explanation, and the jury took this view. This ground is without merit.
3. Special ground 2 assigns error, in that the court failed to charge the jury on the principle of law contained in the Code, § 38-109. On this question the court charged: "The object of all legal investigation is the discovery of the truth. Direct evidence is that which points immediately to the question at issue. Indirect or circumstantial evidence is that which tends to establish the question at issue by proof of various facts and circumstances, sustaining by their consistency the hypothesis claimed. Insofar as the State relies for a conviction on circumstantial evidence alone, the evidence should not only convince your minds beyond a reasonable doubt as to the guilt of the accused; must not only be consistent with the theory of guilt; but must be inconsistent with the theory of innocence."
The defendant in this ground goes into considerable explanation as to why the court should have charged the Code section verbatim or almost so. We will not discuss this phase. Suffice it to say that the charge of which complaint is made was — while not in the exact words of the Code section — substantially correct. It was perhaps more favorable to the defendant in the words given than if exact words of the statute had been quoted.
4. Special ground 3 assigns error because the court admitted over objections the 1922 silver dollar in question. It is contended that this was not properly identified as being the property alleged in the indictment and having been taken from the lumber yard office. In a case dependent upon circumstantial evidence, each fact must be proved separately. The case cannot be made out all at once, and evidence which tends to establish the issue in controversy is admissible. This is so, though it may be that no particular fact is sufficient, standing alone, to prove the issue in controversy. This is the very gist of circumstantial evidence. Of course, if the 1922 silver dollar had been proved beyond peradventure to be the silver dollar alleged in the indictment as the one taken from the lumber yard office and found in possession of the defendant, there would have been no sense in going any further. That would have made out the case unless the defendant satisfactorily explained his possession of it. This was a jury question. That is not all we have here: first, the lumber yard office was burglarized; second, the defendant's motor vehicle, after a heavy rain, left tire tracks in the lumber yard where the vehicle had backed up to the burglarized building; third, then there was the fact that the one hundred dollar bill was in the possession of the defendant early the next morning. All of these facts must be taken into consideration as circumstantial. The jury were clearly authorized to infer that silver dollars coined in 1922 are by this date somewhat scarce. This particular coin had been kept by Mr. Smith for five years until it was traded for the 1923 silver dollar. And we might add that one hundred dollar bills do not move in trade so fluently as to lodge frequently in the possession of people of common vocation. The defendant's explanation to the jury in relation to the one hundred dollar bill is that he had never seen it. He does explain, with reference to the silver dollar, that he made a liquor haul the night of the burglary, sold the liquor, then on top of that had been engaged in the unlawful practice of "a crap game" where he gambled for and received the 1922 silver dollar in question.
Most of the questions dealt with by counsel for the defendant will be found discussed in Rogers v. State, 80 Ga. App. 585 ( 56 S.E.2d 633). That case was one of simple larceny involving the theft of three hundred pounds of D. P. and L. cotton. There was some cotton found in the vehicle of the defendant in that case. The point was raised that the cotton found in the vehicle of the defendant was not properly identified as the cotton lost by the owner. Nevertheless, the court allowed this testimony with reference to the cotton to go to the jury as a circumstance to be considered along with all the other circumstantial evidence in the case. It is interesting to note also that in that case, as here, a plaster of Paris cast was made of the tires of the motor vehicle. There is no merit in this special ground of the amended motion for a new trial.
The court did not err in denying the amended motion for a new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.