Opinion
35347.
DECIDED OCTOBER 1, 1954.
Burglary. Before Judge Kennedy. Richmond Superior Court. June 4, 1954.
John F. Hardin, R. Wm. Barton, Wm. M. Fleming, Jr., for plaintiff in error.
Geo. Hains, Solicitor-General, contra.
1. The evidence, on the trial of the defendant for breaking and entering with intent to commit a larceny, was sufficient to show a conspiracy between him and two other persons, a breaking by one of such persons, and an entry by all three with the intention of committing a larceny of the contents of a safe within the building.
2. Entrapment exists where the intention to commit a crime or induce its perpetration originates with the victim, arresting officer, or some other such person, who persuades the defendant to commit a crime which he would otherwise not have perpetrated. It is not entrapment merely to furnish an opportunity to a criminal who is ready to commit an offense. The defense of entrapment in this case was not sustained by the evidence.
DECIDED OCTOBER 1, 1954.
Carl B. Dye was indicted, tried, and convicted in the Superior Court of Richmond County for the offense of breaking and entering with intent to commit a larceny.
The testimony, in its light most favorable to the verdict, was to the effect, that Postell's Place, a restaurant owned by Burke Johnson and F. L. Usery, and operated by the former, was burglarized during the early morning hours of Tuesday, January 5, 1954; that, on the preceding Friday and Saturday, Johnson had seen one Gene Cochran, whom he knew, with another man, Sanders, "casing the joint" — that when Cochran started hanging around, he knew something was up; that he consulted with the county officers and they also had information that the place might be broken into; that on Sunday night he arranged for the officers to stay outside the place from about midnight until 4:30 a. m.; that nothing happened, and it was too cold outside to remain; that the following night Johnson took five deputy sheriffs to the building, a little after midnight and left them there, locking all the doors and windows; that about 2:30 or 3 a. m. a car stopped close to the front door; that somebody went around the house knocking on the doors and windows and asking whether anybody was inside; that they made no response; that they then heard glass break and Sanders and Cochran entered the building; that the defendant came in right behind them; that one of them, apparently referring to the safe, said, "There it is right over there", and the defendant said, "Well, let's get it; we haven't got all night"; that either Cochran or Sanders pulled the safe out into the room about ten feet; that the safe contained currency; that the defendant started toward the front door, and as he did one of the officers flashed a light on him and he fled but was apprehended outside the house; that the automobile was one belonging to or operated by Cochran, and in it were found instruments which might be used as burglary tools and also a pair of gloves belonging to the defendant, which he had with him.
The defendant in his unsworn statement said that for five or six nights Cochran had been wanting him to go over to Postell's Place with him and he had not wanted to go; that about 3 a. m. on the night in question he had just closed up the place where he worked at night, and Cochran persuaded him to ride over there with him; that he told Cochran he didn't want to go and asked to be taken back, but Cochran said, "All I want you to do is ride over there with me"; that Cochran and Sanders got out of the car, called around the house, and broke open the door and he had nothing to do with it; that after a few minutes he went up to the house and said, "Gene, let's go," and at that time he was apprehended.
The defendant filed a motion for new trial on the general grounds only, and the denial of this motion is assigned as error.
1. The first two contentions of the defendant under the general grounds — to the effect that the State failed to prove a breaking by this defendant, and failed to prove that Cochran and Sanders, whom he denominates the principals, were convicted prior to his trial and conviction — are both without merit. The evidence was sufficient to authorize the jury to find that a conspiracy existed between the three men to burglarize the safe in the prosecutor's restaurant; that, pursuant thereto, they drove to the building, satisfied themselves that no one was inside, and then broke and entered one of the doors and moved the safe out into the room for the purpose of forcing it open with punches and a hammer they had brought with them; and that this felonious intent was shared by the defendant, who also entered the building and adjured the coconspirators to hurry up. Conspiracy being established, the act of each pursuant thereto became the act of all. Cooper v. State, 69 Ga. 761; Nelson v. State, 51 Ga. App. 207 (1) ( 180 S.E. 16); Kryder v. State, 57 Ga. App. 200 (3), 202 ( 194 S.E. 890).
2. There is nothing in the evidence in this case which would sustain the defendant's defense of entrapment. There is no evidence of any agreement between Cochran or Sanders, the alleged coconspirators, and the owner Johnson to "frame" this defendant, although there were some contradictions as to what Johnson had said to third persons regarding the likelihood of a burglary prior to its commission. The acts of Johnson and the police officers in taking measures to apprehend persons breaking into the building did not in any sense constitute entrapment. See, in this connection, Sutton v. State, 59 Ga. App. 198 (3) ( 200 S.E. 225); Bienert v. State, 85 Ga. App. 451 (3) ( 69 S.E.2d 300). The general grounds of the motion for a new trial are without merit.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.