Opinion
36611.
DECIDED APRIL 2, 1957.
Burglary. Before Judge Andrews. Fulton Superior Court. December 10, 1956.
Walter B. Fincher, for plaintiff in error.
Paul Webb, Solicitor-General, Carter Goode, Eugene L. Tiller, contra.
1. Grounds of a motion for new trial which are expressly abandoned will not be considered.
2. The general character of the defendant and his character in other transactions is irrelevant until the defendant chooses to put his character in issue.
3. Acts and declarations of undisclosed conspirators, looking to the concealment of the crime, are admissible against other conspirators.
4. Upon the trial of one charged with burglarizing a named drug store with intent to steal enumerated narcotics and other merchandise, it is error, being a violation of Code § 38-201, for the State to introduce in evidence a pistol found in the defendant's automobile at the time of his arrest when the pistol introduced is not one of the items alleged to have been stolen or used in the burglary.
DECIDED APRIL 2, 1957.
Under an indictment in two counts the defendant, Burl W. Story, and Walter F. Cooper were charged with burglary. They were tried separately, and the State having abandoned count 2 of the indictment, at the close of all the evidence, the defendant was found guilty under count 1 which, omitting the formal parts, charged that he did on March 6, 1955, with force and arms "break and enter the storehouse and place of business of R. E. Baldwin, where valuable goods were contained, with intent to steal, and after breaking as aforesaid, [did] wrongfully, fraudulently and privately take, steal and carry away with intent to steal the same, the following goods, to wit: one bottle of Demerol (30 cc.), twenty-three ampules Demerol (2cc., each), seventy-five 100 milligram tablets Demerol, eighty-eight fifty milligram tablets Demerol, eight half-grain tablets Dilaudid, twelve tablets 1/16 grain Dilaudid, seventy-five 1/32 grain tablets Dilaudid, one hundred twenty-seven tablets 5 milligram Dolophine, one twenty-eight tablets 7.5 milligram Dolophine, one hundred thirty-two tablets 10 milligram Dolophine, sixty-one grain tablets Papaverine, fifty-one tablets 1 1/2 grain Papaverine, eighty-eight tablets Trigesic with codeine 1/2 grain, forty grains codeine phosphate powder, four grains Dilaudid powder, fifty grains Papaverine powder, thirty-five grains Pantopon, ten grains Cocaine crystal, fifteen grains Cocaine flakes, one tablet Dionine 1/4 grain, seventy-two 1 grain tablets codeine, ten 1/2 grain tablets codeine, sixty-four 1/4 grain tablets codeine, eighteen capsules Copavin, thirty-eight tablets Edrisal with codeine 1/4 grain, one hundred four tablets morphine 1/8 grain, seventy tablets morphine 1/4 grain, one forty-five tablets morphine 1/2 grain, thirty-two tablets Pantopon 1/6 grain, nineteen tablets Dilaudid 1/20 grain, one Travelarm clock, one Big Ben alarm clock, one Baby Ben alarm clock, one Spur alarm clock, fourteen wrist watches, three children's wrist watches, eleven Schick Injector razors, six Gillette razors, six pair nurses white hose, fifteen pair nurses white hose, ninety-six pair lady's hose, ten Scripto ball point fountain pens, eight Scripto pencils, twelve 29 cent Scripto pencils, twenty packages 25¢ Gillette razor blades (red), fifteen packages Gillette 98¢ blue blades, thirty-five 49¢ Gillette blue blades, thirty packages Gillette 25¢ blue razor blades, fifteen 49¢ Silver Star razor blades, forty-eight 25¢ Silver Star razor blades, twelve packages Gem razor blades 55¢ twenty-four Gem razor blades 29¢ thirty-six fountain pens, sixteen fountain pens Paper Mate fountain pens, nine re-fills for Scripto pens, twelve 49¢ Scripto re-fills for ball point pens, nine mechanical pencils, twelve pencils 29¢ one pint Elixir of Nembutal, one pint Elixir of Nembutal with Bella Donna, one hundred pieces costume jewelry, consisting of earrings, necklace, one dozen packages Personna razor blades, two packages Luminal ampoules (5 grains each — five to package), one package Luminal ampoules (2 grains each — 5 ampoules to package), one package Phenobarbital sodium ampoules, one hundred Altepose tablets, one bottle (84 capsules) Lextron FG, one bottle (84 capsules) Lextron Ferrous two bottles (84 capsules) Lextron, one hundred capsules 3/8 grain Ephedrine, one pint paregoric, one hundred seventy-five 1 1/2 grain tablets Nembutal, one hundred tablets Nembutal and Aspirin, seventy capsules Nembutal and Ephedrine, one twenty-five capsules 3/4 grain Nembutal, one hundred capsules Nembutal and Bella Donna, one hundred tablets Methedrine, one hundred fifty capsules Seconal 1 1/2 grains, eighty-five capsules Amytal soda 3 grains, thirty Spansules of Dexamyl, one hundred Benzedrine 100 milligrams each, one hundred fifty 5 milligram tablets Benzedrine, thirty Spansules Benzedrine, one hundred thirty tablets Dexedrine 5 milligram, sixty Spansules Dexadrine 10 milligram, thirty Spansules Dexedrine 15 milligram, one Ronson cigarette, lighter, two Ronson cigarette lighters, eight Viv lipsticks, ten Hazel Bishop lipsticks, twelve ounces Dexedrine Elixir, five flashlights (Rayovac), three Everready flashlights, one pint Elixir Phenobarbital, thirty-five dollars and sixty cents in money, four cigarette lighters, five Amity billfolds, one package Coramine ampoules (five in package), one hundred Mebaral tablets 1 1/2 grain, all of the value of $690.19 and the property of R. E. Baldwin."
The defendant's motion for new trial, based on the usual general grounds and six special grounds, was denied, and he assigns error here on that judgment.
1. Grounds of a motion for new trial which are expressly abandoned in the brief of counsel for the plaintiff in error or in his oral argument before this court will not be considered. Code § 6-1308. Special grounds 6 and 8 of the motion for new trial were abandoned by counsel for the plaintiff in error in his oral argument and will not be considered.
2. The assignments of error contained in special grounds 1 and 6 (numbered 4 and 9) involve essentially the same principle of law and are considered here together. In special ground 1, error is assigned on the admission of the following testimony for the State: "I was acquainted with Burl W. Story before the day I went out on Berean Avenue and got the razor blades; I had been knowing him for some time; this defendant, Story, is a known user of narcotics"; and, the court's refusal to grant a mistrial following the admission of such testimony. The vice attributed to this testimony by the defendant in his motion for mistrial was that the statement that the defendant was a known user of narcotics, put his character in issue when he had not done so. In special ground 6, error is assigned on the following excerpt from the charge to the jury: "This defendant, gentlemen of the jury, is on trial for the particular offense charged in this bill of indictment that you will have out for your consideration and on no other charge or charges. He is not on trial on account of any other alleged offense or offenses, and any evidence in this case with reference to any other alleged offense or offenses is admitted for the purpose of your consideration solely and only under the provisions of law that where knowledge, motive, intent and good or bad faith, or any other matter dependent upon a person's state of mind are involved as material elements in the offense for which he is on trial, evidence of the defendant's conduct with reference to other transactions about the same time is admissible for the consideration of the jury in so far only as it might tend to illustrate the defendant's state of mind on the subject involved, if you think it does so illustrate it." In setting at rest the contrariety of opinion which had long existed in this State as to the admissibility in criminal cases of evidence concerning other transactions and other crimes, the Supreme Court, in Bacon v. State, 209 Ga. 261 ( 71 S.E.2d 615), refers approvingly to the dissenting opinion in Hodges v. State, 85 Ga. App. 617, 623 ( 70 S.E.2d 48). In the dissenting opinion in the Hodges case it was stated: "It is axiomatic that the general character of the defendant and his character in other transactions is irrelevant unless the defendant chooses to put his character in issue. Code §§ 38-201, 38-202; Green v. State, 172 Ga. 635 ( 158 S.E. 285); Hunter v. State, 188 Ga. 215 ( 3 S.E.2d 729); Ward v. State, 14 Ga. App. 110 ( 80 S.E. 295); Davis v. State, 60 Ga. App. 772 ( 5 S.E.2d 89). It is equally axiomatic that, where such evidence is erroneously admitted, it is prejudicial to the defendant and demands the grant of a new trial. Bryant v. State, 65 Ga. App. 523 ( 16 S.E.2d 241); Robinson v. State, 62 Ga. App. 355 ( 7 S.E.2d 758)." In that dissenting opinion, an exhaustive and comprehensive study was also made of the various exceptions to the rule against the introduction of evidence of the defendant's character before the defendant has chosen to put his character in issue. And after a perusal and citation of numerous cases involving the exceptions to the general rule, it was concluded by the author of that opinion — and the Supreme Court has expressed the same view in the Bacon case — that the character of the defendant in criminal cases may not be placed in issue by evidence of other transactions or crimes in which the defendant has been involved, or of which he was guilty, in order to show knowledge, motive, intent, scheme, or plan, unless there be shown some logical connection between the other transactions or crimes and the crime for which the defendant is on trial from which it can be said that the proof of the one tends to establish the other. To permit the introduction of such evidence "to show knowledge, motive, intent, scheme, or plan" merely to show "bent of mind"; that is to say, to permit the introduction of such evidence to show that the defendant is more likely to commit again a crime of which he has previously been guilty is the precise reason for excluding such testimony. The defendant in this case is charged with having burglarized a drug store with the intent to steal enumerated narcotics and other items of merchandise. When the defendant was arrested, certain items similar to the merchandise alleged to have been stolen were found in his automobile. Although a witness for the State expressed the opinion that at the time of his arrest, the defendant was under the influence of narcotics, none of the vast quantity of narcotics alleged to have been stolen was found in his possession. The fact that the defendant was "a known user of narcotics" without more, does not in any way tend to establish that he is a burglar or that he committed the crime of burglary alleged in the indictment. The trial court, consequently, abused its discretion in refusing the motion for mistrial after the introduction of the testimony that the defendant was a known user of narcotics, and erred in its instruction to the jury of which complaint is made, in permitting such evidence to be used by the jury to establish the defendant's "bent of mind." The admission of the testimony and the court's instruction to the jury placed the defendant's character in issue at a time when he had not chosen to do so.
3. In special ground 2 (numbered 5), error is assigned upon the admission of the following testimony of one of the arresting officers: "When I made the arrest, when I went in there, as I said before, there was a fellow in there by the name of Cooper [the man jointly arrested and indicted with the defendant, but tried separately]. The minute we entered the room, Cooper grabbed some tablets and put them in his mouth and swallowed them right quick. Of course, I grabbed Story and when I did, that is when I seen that he had the syringe under his belt. I took that off of him. . ." (Brackets supplied by the court.) Counsel for the defendant objected to the admission of this testimony upon the ground that it was irrelevant and immaterial on the trial of the defendant and that if the purpose of such testimony was to establish a conspiracy between Cooper and the defendant to commit the crime of burglary, the crime had ended. This ground of the motion for a new trial is without merit. Acts, conduct and declarations of an accomplice during the pendency of the wrongful act, not alone in its actual perpetration, but also in its subsequent concealment, are admissible against another accomplice. In legal contemplation the enterprise may not be at an end, so long as the concealment of the crime is sought or the identity of all the conspirators has not been disclosed. Acts and declarations of such undisclosed conspirators, looking to the concealment of identity and the suppression of evidence, are admissible against other conspirators. Thompson v. State, 58 Ga. App. 593 ( 199 S.E. 568). Under the circumstances of the present case, the jury might have inferred that Cooper was a conspirator of the defendant in the alleged burglary and that his swallowing of the pills, under the circumstances and at the time related by the witness, was an effort to suppress evidence.
4. "The evidence must related to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded." Code § 38-201. In special ground 4 (numbered 7) error is assigned upon the introduction in evidence by the State of a Colt automatic pistol which a witness for the State identified as one discovered in the defendant's automobile at the time of his arrest. Under the clear provisions of the Code section quoted above and the facts of this case, the admission in evidence of the pistol was erroneous. The question before the jury was whether or not the defendant was guilty of burglarizing the named drug store with intent to steal the described items of merchandise. The Colt automatic pistol was not one of the enumerated items of merchandise. The defendant's possession of the pistol at the time of his arrest illustrated nothing concerning the alleged burglary, and in no way connected the defendant with the burglary. The introduction of the evidence concerning the pistol in the present case differs entirely from the introduction of similar evidence in Clay v. State, 94 Ga. App. 553 ( 95 S.E.2d 471). In that case, the State brought out the facts concerning the defendant's possession of the pistol at the time of his arrest upon cross-examination of a witness for the defendant, and this was done to test the veracity and memory of the witness.
The trial court erred in denying the motion for new trial for the reasons stated in the foregoing divisions of the opinion.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.