Opinion
37588.
DECIDED MARCH 20, 1959. REHEARING DENIED APRIL 1, 1959.
Burglary. Fulton Superior Court. Before Judge Andrews. December 19, 1958.
Charlie Franco, Marvin O'Neal, Jr., for plaintiff in error.
Paul Webb, Solicitor-General. Carter Goode, Eugene L. Tiller, contra.
In view of the record before us we find the evidence is sufficient to sustain the verdict, and the special grounds are not meritorious.
DECIDED MARCH 20, 1959 — REHEARING DENIED APRIL 1, 1959.
The defendant was convicted of a charge of burglary. His amended motion for new trial was denied, and it is to this judgment that the case is here for review.
The evidence shows that the defendant and Cain, his companion, were drinking on the night of the burglary; that Cain removed a window screen, broke out a window pane and went into the school building while the defendant remained outside; that inside the building an officer shot Cain and then brought the defendant into the building.
Cain testified that he went into the school building with the intention of "knocking off" the coke machine for change. The defendant denied his guilt and stated that he and Cain were drinking heavily on the night of the burglary. The officers testified that the defendant and Cain probably had been drinking but were not intoxicated; that the officers observed the defendant and his companion approaching the school and saw Cain with the crowbar; and that the defendant and Cain were walking fast but were not staggering.
1. The evidence, when considered from every standpoint, is sufficient to sustain the verdict.
2. Special ground 1 assigns error because the court refused to allow a witness for the State to answer the following question asked by counsel for the defendant on cross-examination: "Now, isn't it true that he told you about coming back to get some books?" Counsel for the defendant contends that, had the witness been permitted to answer the question, counsel probably would have been able to have shown that the defendant had an explanation of his presence at the scene of the alleged crime, — as part of the res gestae. Counsel cites as authority for this position Mitchum v. State, 11 Ga. 615, wherein the Supreme Court stated that declarations are not required to be precisely concurrent in point of time in order to be a part of the res gestae. The rule as to the acceptance or rejection of declarations in this field of law is hard, if not impossible, to set out. However, such declarations must be contemporaneous with the transaction, and admission or rejection of such declarations, as stated in Mitchum v. State, supra, is a question for judicial discretion. No precise point of time can be fixed as to where the res gestae ends. Each case turns on its own facts and circumstances. See Hall v. State, 48 Ga. 607, and Sullivan v. State, 101 Ga. 800 (2) ( 29 S.E. 16). This special ground is not meritorious.
3. Special ground 2 assigns error because the court refused to allow the codefendant Cain, who was testifying as a witness for the State but was on cross-examination, to answer the following question: "Didn't you tell Lindsey that you had been there that morning and he said he didn't remember?" (The evidence discloses that the word "there" refers to a drinking place.) Counsel insists that, had the witness been allowed to answer the question, the answer would have developed information that the defendant was under the influence of intoxicants to such an extent as to be unable to form an intent to commit the crime alleged. There is nothing in the record to show that the answer would have helped the defendant, and the refusal of the court to allow the codefendant Cain to answer could not have harmed the defendant, in view of the whole record. This special ground is not meritorious.
The court did not err in any of the rulings.
Judgment affirmed. Carlisle, J., concurs. Townsend, J., concurs in the judgment.