Opinion
31609.
DECIDED SEPTEMBER 3, 1947.
Burglary; from Bibb Superior Court — Judge Mallory C. Atkinson. March 6, 1947.
Roy B. Rhodenhiser Jr., W. W. Daniel, for plaintiff in error.
Charles H. Garrett, Solicitor-General, William M. West, contra.
1. "The refusal of the court to direct a verdict in a criminal case can not be made the subject-matter of an assignment of error in the reviewing court." Nalley v. State, 11 Ga. App. 15 (7) ( 74 S.E. 567).
2. If the defendant broke and entered the storehouse with the intent to steal and was prevented from so doing, the crime is burglary, and there was no error in charging to that effect. "The jury under the law had no right, if they believed the defendant broke and entered the [store] house as charged in the indictment [burglary], to find a verdict for any less offense than that charged therein; although they might have believed that the defendant was detected and prevented after he had broke and entered the [store] house from carrying his intention into effect. The offense of burglary was complete, and the law does not relieve him from its consequences, because he was detected and prevented from carrying his intention into effect, as in cases of larceny from the house." It was not error for the trial judge to fail to charge in the language of the Code, §§ 26-2631 and 26-2633, and it was not error to fail to charge that the offense of burglary was reducible to the lesser offenses provided in such Code sections.
3. "While it is true that a defendant in a criminal case electing to make a statement is not subject to cross-examination without his consent, yet as this provision of the statute is but a rule of trial procedure it is the better practice to omit any reference to it in the general charge. Cargile v. State, 137 Ga. 775 (2) ( 74 S.E. 621).
4. The evidence authorized the verdict.
DECIDED SEPTEMBER 3, 1947.
John Alvin Johnson was indicted for burglary. The State introduced evidence to show that the defendant had been previously convicted of that offense. The jury returned a verdict of guilty and fixed the punishment at not less than twenty years and not more than twenty years. The defendant filed a motion for new trial on the general and nine special grounds. The trial court overruled the motion on each and every ground, and the defendant excepted.
The indictment was in part as follows: "Charge and accuse John Alvin Johnson . . with the offense of burglary; for that the said accused, on the 21st day of May in the year nineteen hundred and forty-six in the county aforesaid, did then and there unlawfully, and with force and arms, feloniously break and enter into the storehouse and place of business of Ernest Freeman Lester, trading as "The Silver Street [Streak]' where valuable goods, wares, and merchandise were contained and stored, with intent to commit a larceny."
From the evidence the jury were authorized to find that the prosecutor, Ernest Lester, and his wife, Inez Lester, operated a restaurant and beer parlor; that the prosecutor and his wife lived in quarters below the place of business; that food and beverages were sold in the restaurant and beer parlor on the day before the alleged burglary, and business was being conducted in the usual manner; that a stairway connected the living quarters and the place of business; that an inspection of the place of business was made by the prosecutor and his wife before closing to determine if anyone was hiding therein; that the defendant was seen in the place of business during the afternoon and evening of the day before the alleged burglary; that the wife of the prosecutor was awakened about 2:30 a. m., May 21, 1946, by a "tapping" sound in the place of business; that the prosecutor went up the stairway into the place of business, shouted and fired a shot from his pistol; after firing the pistol he turned on the light and saw the defendant walking towards him; that the defendant said, "Don't shoot me, I have nothing but a wrench;" that the wife of the prosecutor called the police; that the defendant then shot at the prosecutor; that the bullet struck a metal sink; that particles of the bullet struck the prosecutor; that the defendant made his exit by way of the rear door in the place of business, which could be opened from the inside only; that a hole had been cut in the screen on a window in the rear of the place of business; that the hole was large enough for a man the size of the defendant to enter; that the screen was in good condition when the place of business was closed for the evening; that a screw driver was found sticking in the back of an automatic victrola, a record player operated by the deposit of coins; and that the defendant was positively identified by the prosecutor and his wife about six months later as the intruder who had been in their place of business at the time of the burglary.
1. In special ground 1, the defendant contends that the court erred in refusing to grant a motion by defendant's counsel to dismiss on the ground that a breaking and entering had not been shown. "The refusal of the court to direct a verdict in a criminal case can not be made the subject-matter of an assignment of error in the reviewing court." Nalley v. State, 11 Ga. App. 15 (7) (supra); Douberly v. State, 184 Ga. 577, 578 (3) ( 192 S.E. 226).
2. In special grounds 2, 3, 4, and 7, the defendant contends that the court erred in failing to charge the Code, § 26-2633; that the court should have charged that the offense of burglary was an offense reducible to the lesser offense of breaking and entering; that the court erred in failing to charge the law relative to breaking and entering; and that the court erred in failing to charge the Code, § 26-2631.
Inez Lester testified for the State in part as follows: "Before my husband and I closed up our place of business that night, we made an inspection of the interior to see if there were any patrons left in the place; we checked on that before we went to bed. We checked in the rest room to see if there was anybody left in the rest room, and there was nobody in the rest room. There was nobody under the tables or anywhere they could hide. We looked all over the place before we went to bed to make sure there was nobody left in the restaurant."
Ernest Lester, the prosecutor, testified in part: "I saw where the defendant broke in and entered my place. He broke in through the back window. Mr. West asked me, `Was there a screen, how was your back window fastened in, what did he have to do to get through the back window?' and I told Mr. West he `cut the screen.' The question was asked me, `Was the back window fastened or unlatched?' and I answered, `I don't remember whether it was latched or not, but it was up.' It was open when I came in the restaurant that night and the screen in that window was cut. There was a hole in the screen big enough for the defendant to go through there. The window and the screen had not been in that condition before when I closed up my restaurant." On cross-examination, the witness testified: "I said whoever broke in my place came in the back window. The window is about twelve feet high from the ground. It is a pretty high window from the ground but there is a back door next to the window. As to what the door has got to the window, there are steps you can — there are no steps up to the window but there are steps up to the door. From my window to the steps it is about three feet. A man could stand there at the steps and reach right up to the window from the steps."
We are of the opinion that the above evidence was sufficient to authorize the jury to find that there had been a breaking and entering of the storehouse and place of business of the prosecutor. See, in this connection, Moye v. State, 70 Ga. App. 890 ( 29 S.E.2d 791).
The defendant is charged with burglary under the Code, § 26-2401. The evidence shows a breaking and entering of a storehouse, and that the offending person was interrupted and prevented from carrying into effect an apparent intention to steal. "If the defendant breaks and enters the description of house mentioned in the statute [Code, § 26-2401], with the intention to commit a felony, or larceny, and is detected and prevented, etc., the punishment is not mitigated on that account in an indictment for burglary, and the jury under the law had no right, if they believed the defendant broke and entered the house as charged in the indictment, to find a verdict for any less offense than that charged therein; although they might have believed that the defendant was detected and prevented after he had broke and entered the house from carrying his intention into effect. The offense of burglary was complete, and the law does not relieve him from its consequences, because he was detected and prevented from carrying his intention into effect, as in cases of larceny from the house." Williams v. State, 46 Ga. 213, 218. The distinction between Code, § 26-2401 and §§ 26-2631 and 26-2633 "is affirmed as law." Lanier v. State, 76 Ga. 304, 306; Evans v. State, 146 Ga. 98 ( 90 S.E. 743); Daniel v. State, 48 Ga. App. 789 ( 173 S.E. 485).
Therefore it was not error for the trial judge to fail to charge in the language of the Code, §§ 26-2631 and 26-2633; and it was not error to fail to charge that the offense of burglary was reducible to the lesser offenses provided in such Code sections.
3. In special ground 5, the defendant argues that the evidence does not show that valuable goods were stored or kept on the premises where the alleged burglary occurred. This ground is not meritorious. The evidence was sufficient to authorize the jury to find that valuable goods, wares, and merchandise were stored in the storehouse and place of business of the prosecutor as alleged in the indictment.
4. In special ground 8, the defendant contends that the court erred in failing to instruct the jury fully concerning the statement made by the defendant, in that the court omitted to inform the jury that the defendant's statement was not subject to direct or cross-examination. With the defendant we do not agree. Cargile v. State, 137 Ga. 775 (2) ( 74 S.E. 621); Kryder v. State, 75 Ga. App. 34 ( 41 S.E.2d 824).
5. In special ground 9, the defendant complains of the following charge: "You are the judges of the law in the case, but you take the law as given you in charge by the court, and applying the law to the facts, as you find the facts to be, you return a verdict that speaks the truth of the case, the object of all legal investigation being the discovery of the truth." The defendant objects in particular to that portion of the charge which states, "you take the law as given you in charge by the court." In the preceding divisions of this opinion it has been determined that none of the assignments of error complaining of the instructions to the jury are meritorious; therefore this assignment of error present no question for determination by this court.
6. The evidence authorized the verdict.
Judgment affirmed. Gardner and Townsend, JJ., concur.