Opinion
45761.
ARGUED NOVEMBER 3, 1970.
DECIDED DECEMBER 2, 1970. REHEARING DENIED DECEMBER 18, 1970.
Burglary. Fulton Superior Court. Before Judge Shaw.
Gilbert Carter, Fred A. Gilbert, for appellant.
Lewis R. Slaton, District Attorney, Stephen A. Land, J. Melvin England, Tony H. Hight, for appellee.
1. Under disputed testimony, the jury was authorized to find against the defense that this defendant, one of three who were together when a church was burglarized, was drunk or asleep and took no part in the planning or perpetration of the crime.
2. In the absence of a written request it is not error to fail to charge on the subject of impeachment of witnesses.
3. The defense of alibi is not involved.
4. Where the State does not rely upon the evidence of an accomplice for conviction, it is not error in the absence of request to fail to charge on the necessity for corroboration of such witness. Here the State made out a prima facie case by testimony that the defendant and two others were apprehended on the church premises with an organ amplifier which had been removed from the church and which was resting a few feet from their automobile, apparently about to be loaded in it.
5. Objections to the conduct of the examination of a witness not made in the trial court will not be considered here.
6. The offense of burglary as set out in the new Criminal Code does not require proof of a breaking.
7. The rule of law that larceny may be inferred from the recent possession of stolen goods unexplained to the satisfaction of the jury refers to possession after the larceny has been completed. The instruction is irrelevant but harmless where all the facts show that burglary has been committed and the defendants apprehended before they have had a chance to leave the premises.
ARGUED NOVEMBER 3, 1970 — DECIDED DECEMBER 2, 1970 — REHEARING DENIED DECEMBER 18, 1970 — CERT. APPLIED FOR.
Police officers on patrol passed a churchyard at about 3 a. m. and observed a car in the yard with two men standing beside it. As they turned in to investigate one of the men later identified as Collins attempted to flee. The second, Chitwood, was arrested on the spot as was the defendant who was sitting in the front seat of the automobile. An organ amplifier which had been removed from the church was found about five feet behind the car. Collins and Chitwood pleaded guilty to burglary. Bridges appeals from his conviction on a jury trial.
1. The defendant was sworn and testified that he had joined the co-indictees after playing in a band, had drunk a considerable amount of liquor and fallen asleep in the car, and waked up just before the police car arrived. Collins corroborated this testimony and stated that Bridges did not know of the plan to burglarize the church, was asleep when they got there, and did not go inside. Chitwood testified that the plans were made by all three defendants and that Bridges went to the church door with Collins and himself and held it open as they carried out the amplifier. The testimony of the minister of the church and one of the detectives was offered for impeachment to show that Collins' original account of the affair had agreed with that put forward by Chitwood, and that the attempt to exonerate the defendant was an afterthought.
The defense sought to be established here is the same as in Greeson v. State, 90 Ga. App. 57 ( 81 S.E.2d 839), where there was no material conflict in the evidence and all witnesses testified that the defendant had drunk a large quantity of liquor and was drunk or asleep in the car when the plan to burglarize a store was effected and remained so until noon of the next day. The court held: "Where ... there is direct evidence that a defendant on trial in a criminal case was present at the scene of the crime, but no evidence that he participated therein, this is insufficient to support a verdict of guilty where the circumstances are consistent with his contention that his presence was involuntary and that he was not conscious of the fact that the crime was being committed." Intent, however, is peculiarly a jury question. Brittain v. State, 41 Ga. App. 577 (2) ( 153 S.E. 622). One co-conspirator directly contradicted the defendant's assertion that he did not take part in the preliminary conversation about robbing the church or in the actual entry and removal of the property. The other co-indictee made contradictory statements and the jury was authorized to disbelieve his testimony entirely. That there was an illegal entry and that the equipment was feloniously removed by some or all of the defendants is undisputed. The verdict is accordingly amply supported by the evidence.
2. The trial court admitted testimony of two witnesses as to statements by Collins contradictory to his sworn testimony on the trial. Since there was no objection to allowing the testimony for this limited purpose, no question of admissibility arises. That the trial judge avoided the subject of impeachment of witnesses in his instructions is not harmful error in the absence of a request to charge on the subject. Long v. State, 127 Ga. 350 (4) ( 56 S.E. 444).
3. Alibi involves the impossibility of the accused having been present at the scene of the crime because he was elsewhere. Code § 38-122; Johnson v. State, 59 Ga. 142 (1). Since the defendant did not deny being at the scene of the burglary, this defense is not involved in the case.
4. Since there was direct and positive testimony that the co-indictees jointly planned and participated in the burglary, supported by all the circumstances under which the peace officers discovered them in the act of asportation of the property, the charge on conspiracy was not subject to the defects urged. "Where the State does not rely solely upon the evidence of an accomplice to connect the accused with an offense, it is not incumbent upon the court, without request, to instruct the jury touching corroboration." Williams v. State, 40 Ga. App. 217 (1) ( 149 S.E.2d 292).
5. The district attorney before examining a State's witness asked the court's permission to use leading questions on the ground that he expected the witness, a co-indictee, to be hostile. The court agreed. No objection was offered to the ruling, and it is too late to object here.
6. The court correctly charged the definition of burglary as contained in the new Criminal Code ( Code Ann. § 26-1601). It will be noted that a conviction for burglary no longer necessarily includes proof of a breaking, and that it is sufficient if the accused "enters or remains" with intent to commit a felony or theft.
7. The instruction on recent possession of stolen goods, while hardly apropos where the thieves are arrested with the property in their possession before they have left the premises, is not such error as to require reversal.
Judgment affirmed. Hall, P. J., and Evans, J., concur.