Opinion
35338.
DECIDED OCTOBER 19, 1954.
Larceny from the house. Before Judge Thomas. Ware Superior Court. May 29, 1954.
Herbert W. Wilson, Leon A. Wilson, II, for plaintiff in error.
J. R. Walker, Solicitor-General, Kopp Peavy, contra.
1. There is sufficient evidence upon which to base the verdict of guilty.
2. The special grounds are without merit, for the reasons given in the body of the opinion.
DECIDED OCTOBER 19, 1954.
Ida Mae Diggs was convicted in the Superior Court of Ware County of larceny from the house. A motion for a new trial was made on the general grounds, and later amended by adding three special grounds. All the grounds were overruled, and the case is here complaining of such overruling.
The evidence shows substantially: Between 12:30 and 1:30 p. m., on October 15, 1953, the defendant and three other girls went into Fashion Shoppe, a store and place of business in Waycross, Ware County, Georgia. Mrs. H. A. Long, the saleslady, was busy with another customer in the front of the store when they came into the store, and it was several minutes before she was free to assist them. In the meantime, the girls went toward the rear of the store and pulled out and looked at several suits. Mrs. Long assisted one of the girls to try to find a suit and a coat, but she could find nothing she liked. While Mrs. Long helped the other girl, the defendant pulled out several suits and showed them to the other two girls. Mrs. Long testified that she distinctly remembered seeing the defendant handle a blue suit which was later recovered from the police, and was one of the items of merchandise described in the indictment. Mrs. Long also testified that she saw the other two girls near the skirt rack, but did not remember seeing the defendant there. Mrs. Long did not remember what the defendant did with the suits that she pulled from the rack, but did not see her put them back. All of the girls left the store without buying anything. Mrs. Long did not remember what the other girls were wearing, but testified that the defendant was dressed in a large wide-bottomed ballerina skirt and blouse, and that the skirt "was large enough to very easily conceal something under it." After they left, Mrs. Long started to put away the suits, but was interrupted by another customer before she finished. Mrs. Long did not check or examine the suits when the girls left or when the store closed that night, and did not remember whether the blue suit was there or not. She testified that she did not see any of the girls take or carry away anything out of the store or steal anything therefrom; and that on October 15, 1953, there were missing or taken from Fashion Shoppe four wool suits and eight wool and orlon skirts, which she later identified and recovered from the police the following morning.
On October 15, 1953, shortly before 2 o'clock in the afternoon, the defendant and two other girls went into Beck's, a dress shop across the street from the rear of Fashion Shoppe, where Mrs. Estelle Adams, a saleslady, assisted one of the other girls to try on some dresses, while the defendant pulled out and looked at several dresses. The three girls left the store without purchasing anything. Mrs. Adams testified that she did not see the girls take anything from Beck's and she was with them about all the time. Mrs. W. A. Childs, manager of Beck's, testified that on October 15, 1953, there were taken from Beck's six wool jersey blouses, which she recovered from the police.
When Mrs. W. A. Childs, the manager of Beck's, returned from lunch about 2 o'clock, she saw a Chevrolet car with a Florida license parked on the street across from her store and at the rear of Fashion Shoppe. She watched a girl other than the defendant put two packages in the back of the car and lock it. As this other girl locked the car, Mrs. Childs saw Robert Edwards come around the corner and meet the girl at the car. Mrs. Childs testified that she became suspicious and tried to find a policeman, but did not see one at that time. She watched the man and girl drive around the corner and park the car across the street from Kenwin Shop. Mrs. Childs then walked down the street, where she found Buddy Cribb, a policeman, at the corner of Kenwin Shop and turned the matter over to him. As Mrs. Childs walked back down the street toward her shop, she passed Robinson's Department Store and saw the defendant and one of the other girls come out of Robinson's. In front of Robinson's the other girl gave the defendant a package in a plain paper bag without markings folded into a small package. The defendant carried the package and gave it to another girl standing near the car driven by Robert Edwards, who put it in the car. Mrs. Childs watched them a few minutes, and saw four girls, including the defendant, and Robert Edwards, together near the parked car, and another girl in the car. Mrs. Childs testified that they didn't go up to the car, but acted as if they thought someone had seen them or something. She testified that they were standing near the car and would pass and say something to each other as they passed. Mrs. Childs walked back down the street to the policeman, who had called for a patrol car. Witness testified that she saw the defendant and one of the other girls carry a package to the car Edwards was driving. "I saw Ida Mae Diggs carry a package to the car." Witness identified certain recovered merchandise as being merchandise which was missed from the Fashion Shoppe. This merchandise had been recovered by the policeman from the car driven by Edwards.
Officer Cribb and Mrs. Childs watched the group of people, and Cribb testified that the three girls on the street near the car were the three girls who were tried and convicted at the last term of court, and that the defendant was with them. He also testified that he saw the man behind the wheel of the car and another girl in the car with him. As Cribb and Mrs. Childs watched, the four girls near the car started to walk down the street and across the railroad crossing. The car was started up and followed the same route, passing the girls about the railroad crossing. The patrol car arrived, with officers Moore and Griffis, who intercepted the car and arrested Robert Edwards in it. When the officers arrested Edwards, the four girls were about a block away. Officers Griffis and Cribb testified that, when Edwards was arrested, they started running toward the Y. M. C. A., a block and a half away. Officer Griffis jumped from the car and pursued them, he testifying that he caught the defendant as she attempted to enter the basement of the Y. M. C. A. after the other girls had entered its basement. The other three girls were arrested shortly thereafter. No account was made of the other girls in the car with Edwards.
Officer Griffis testified that when he arrested the defendant, she refused to tell him her name and told him that she lived in Waycross, whereas he later found that she lived in Jacksonville.
Officer Cribb testified that in the back seat of the car under a chenille spread were found numerous dresses, skirts, and ladies' underwear in paper bags, some of which were identified as belonging to Fashion Shoppe. There were also about two dozen paper bags without markings on them and folded in four ways into a small package in the back seat of the car, and about fifty such paper bags unfolded in the trunk compartment of the car.
It was further testified that the defendant was not tried at the last term of the court and her bond forfeited because they said she was sick and the doctor sent a letter that she could not appear.
The defendant introduced no evidence other than her own statement, wherein she stated that she asked Robert Edwards to drive her to Waycross to see a lady named Evelyn Ward, who was supposed to give readings. When they arrived in Waycross, they were unable to find her, and one of the girls suggested that they go downtown and window shop. Robert Edwards drove them downtown and parked the car on the street back of the Fashion Shoppe. Edwards left the car there and went off to get something to eat while the girls started going into different stores. The defendant denied taking anything out of the stores, and stated that, if any of the other girls took anything out of the stores, she did not see them do it. The defendant further denied putting any packages or anything in the car. She admitted that she had a package in her hand when she came out of Robinson's and explained that it contained a pair of panties which she had purchased there and for which she had a sales slip; that she still had the package in her hand when she was arrested. The defendant also denied running when she was arrested, and stated that no one asked her name when she was arrested; that she was not questioned until she was at police headquarters. She stated that, when she was arrested, they put her in the patrol car, asked her what was in the bag, took it, and never gave it back to her. The defendant further stated that she was not in court the last term of court because the doctor had put her to bed with bronchitis and pleurisy; that a detective had called to Waycross and told the deputies there that the defendant was in a night club, but later admitted to the defendant's mother that he got the wrong girl and thought it was the defendant. The statement sent by her doctor had not been notarized and the defendant's mother did not know she was supposed to have it notarized and brought it without having it notarized.
1. Counsel for the defendant argues that in every criminal case the burden rests upon the State to prove the defendant's guilt beyond a reasonable doubt. Code § 38-110. In carrying this burden, circumstantial evidence should be consistent with the hypothesis of guilt, and should exclude every other reasonable hypothesis save that of the guilt of the defendant. Code § 38-109. A bare suspicion of the defendant's guilt is not sufficient. Carter v. State, 57 Ga. App. 180 ( 194 S.E. 842), which was a hog-stealing case. There the circumstantial evidence was too remote to consider as excluding every other reasonable hypothesis save that of the guilt of the defendant. The facts in that case in no way resemble those in the instant one. There is sufficient evidence, not entirely circumstantial, in the instant case, to show that the defendant (and/or her coconspirators) was in possession of stolen goods immediately before the arrest. There is sufficient evidence to show that she and others were operating together to commit larceny from the house. The defendant fled when the officers attempted to arrest her. It has been held on many occasions that flight or concealment, together with other circumstances, is sufficient to convict. See Sheffield v. State, 1 Ga. App. 135 (2) ( 57 S.E. 969). There are many other decisions to the same effect. The evidence as a whole amply supported the jury's verdict of guilty. There is no merit in the general grounds.
2. In special ground 1, the defendant complains that evidence regarding merchandise allegedly stolen from another store other than the Fashion Shoppe, was illegally admitted. As shown by the evidence, this merchandise was removed from Robinson's store, in the same town, on the same day, by the same person, in the same manner, as was the merchandise taken from the Fashion Shoppe. In support of the contention that this evidence was illegally admitted, counsel for the defendant cite Wiggins v. State, 80 Ga. App. 258, 259 ( 55 S.E.2d 842). A reading of that case will show that three judges ruled that the introduction of evidence of independent crimes was reversible error. The facts in that case as to the point in issue are not similar to the facts in the instant case. In that case evidence of other and distinct crimes was introduced. Not so in the instant case. See Code (Ann.) § 38-202, catchwords "Independent crimes," and Goodman v. State, 184 Ga. 315 ( 191 S.E. 117); Hall v. State, 7 Ga. App. 115 (6) ( 66 S.E. 390); Goldberg v. State, 20 Ga. App. 162 ( 92 S.E. 957); McDuffie v. State, 17 Ga. App. 342 (5) ( 86 S.E. 821). See also Black v. State, 85 Ga. App. 628 ( 69 S.E.2d 839). This ground is without merit.
Special ground 2 complains because the court erred in charging on conspiracy when no conspiracy was shown. In support of this contention, counsel cite Annis v. State, 85 Ga. App. 188, 191 ( 68 S.E.2d 473). In that case the court said, in affirming the conviction: "In order to authorize the court to charge on conspiracy, it is enough if there be evidence from which a legitimate inference can be drawn that there was a combination between two or more parties to do an unlawful act (this is the conspiracy) and that the combination was the means by which the criminal act was accomplished, and this inference may be drawn from proof of acts and conduct as well as by direct proof or express agreement." Goolsby v. State, 147 Ga. 169 ( 93 S.E. 88) is not applicable here. The evidence, as set out hereinabove, is sufficient to show conspiracy, and therefore it follows that the court did not err in charging on conspiracy. See Ivester v. State, 66 Ga. App. 563, 564 ( 18 S.E.2d 508) and Johnson v. State, 83 Ga. App. 710 (2) ( 64 S.E.2d 634).
Special ground 3 complains because the court erred in charging the jury regarding recent possession of stolen property. Counsel for the defendant in his brief says: "It is admitted that the charge is a correct statement of abstract law, but it is contended that it is inapplicable to the case at bar, since the defendant was not found in possession of the stolen goods at the time." In Thomas v. State, 33 Ga. App. 680 ( 127 S.E. 891), where counsel made practically the same statement, it was held that "The charge of the court as to recent possession of stolen property was authorized by evidence showing such possession by one of the alleged conspirators." It follows that in the instant case the court did not err in charging on recent possession of stolen goods. There is no merit in this contention.
The court did not err in denying the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.