Opinion
49132.
ARGUED MARCH 5, 1974.
DECIDED MARCH 15, 1974.
Delinquent minor. Fulton Juvenile Court. Before Judge Powell.
McCord, Cooper Voyles, Robert B. McCord, Jr., for appellant.
Lewis R. Slaton, District Attorney, Morris H. Rosenberg, George Geiger, for appellee.
The appellant, a 13-year-old male juvenile, appeals from a judgment of the Juvenile Court of Fulton County finding him to be a delinquent in that he committed the offense of burglary at Tull Waters Elementary School.
The evidence shows that between 11:30 p. m. and 12:30 a. m. on the night in question, officers answering a silent alarm found the appellant seated in the right front seat of a Volkswagen automobile, which was parked on the school grounds. One Ricky Lee Denny was in the driver's seat at the time. A forty-eight-star American flag belonging to the school was found on the floorboard between the front and rear seats of the automobile. On the opposite side of the school, two other youths were found coming out of an open door. The appellant's explanation was that he had worked at a nearby service station that night; that Ricky Denny drove into the station "about the time I usually go home," purchased $2 worth of gas, and offered him a ride home. This evidence is not rebutted. The appellant further testified that after he got into the car it was driven to the school grounds, where it was stopped by the officers.
"To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code § 38-109. In reviewing the evidence in this case, we cannot say that it excludes the reasonable hypothesis that the school was broken into and the flag stolen prior to appellant's entering the automobile. See Crane v. State, 123 Ga. App. 226 ( 180 S.E.2d 289); Morris v. State, 119 Ga. App. 157 ( 166 S.E.2d 382); Browner v. State, 127 Ga. App. 189 ( 193 S.E.2d 58).
Judgment reversed. Hall, P. J., and Deen, J., concur.