Opinion
34718.
DECIDED JULY 14, 1953.
Burglary. Before Judge Brooke. Cherokee Superior Court. April 21, 1953.
Ben Smith, Pierre Howard, for plaintiff in error.
H. G. Vandiviere, Solicitor-General, contra.
The evidence that the defendant was guilty of the burglary charged in the indictment, although circumstantial, was sufficient to exclude every other reasonable hypothesis save that of the guilt of the accused.
DECIDED JULY 14, 1953.
The plaintiff in error, William Grady Little, was indicted in the Superior Court of Cherokee County with his brothers, Henry and Ode Little, for burglary, and was separately tried and convicted.
The evidence on behalf of the State is circumstantial in character. It was shown by the testimony that certain police officers received word that some person was within a Standard Oil Company building located at the intersection of the Canton-Marietta Road and a certain railroad; that the officers went to this place; that as one of them got out of the car he heard a window slam; that a few seconds later he saw two men, unidentified, running east down the track, and fired at them; that a few seconds later a car door was heard slammed; that the officers then went down the road behind the Standard plant from which the sound had seemed to come; that 70 paces east of the railway crossing they found evidence that a car had been parked; that this road crossed the railroad below (east) of the Standard plant, and another fork went on by a creek and swampy land; that they took the right fork, then crossed the track and circled back; that they found the defendant parked in a lumber yard about 300 yards from the Standard plant; that, although they were unable to track this car every inch of the way, they did identify its track as that of the car which had been parked east of the crossing, at which point there were several sets of human footprints going to and from the Standard Oil building, and one set of footprints approaching it from another direction; that on the north side of the railroad, where the left prong of this road crossed the tracks, these same car tracks were identified as having backed into a lumber yard from this road to the point where the defendant's automobile, with the defendant therein, was found by the side of a stack of lumber; that these were the only car tracks at these places, although there were other tracks in the lumber yard; and that the tracks were not obscured by those of the police car, since the latter had taken the right prong of the road and circled back to the point where the car was parked, after crossing the railroad tracks farther to the east.
The defendant, who lived in another county some 20 miles away, made inconsistent statements on being apprehended as to why he was parked in the lumber yard at that time (about 2:30 a. m.). His trouser leg was torn and the palms of his hands and one knee were scratched and bleeding. It was attempted to be shown that there were marks on a steep bank north of the railroad tracks where a person falling could have hurt himself in this manner, but it was not shown that the defendant was the person who made these marks. There were also marks and trampled places in the briars where two or more persons had forced their way through some 25 or 30 feet from where the car had been parked. The defendant's two brothers (who were contended to be the two unidentified men who had fled down the railroad track in the general direction of the automobile) were apprehended that morning, after the defendant's arrest, as they entered the highway, their clothes wet from the waist down, feet muddy, and arms and faces scratched by briars. There was further testimony that the Standard Oil plant had been entered through a window and the safe opened, and that the burglary tools had been left in the building as well as certain funds, indicating that the burglary had been interrupted by the arrival of the police car.
The defendant assigns error on the denial of his motion for new trial on the general grounds only.
The sole question raised by the plaintiff in error is whether the evidence against him, which was circumstantial in character, is sufficient to exclude every other reasonable hypothesis save that he participated in the burglary charged in the indictment. It is the theory of the State that his participation was with that of his two brothers, he acting as lookout while they committed the burglary. This theory, however, does not have to be supported in order for the evidence to be sufficient to support the verdict of guilt since if, on any theory, the evidence supports the verdict, it must stand. If his participation was such as to make him an accessory before the fact, he would be equally guilty with those who actually broke and entered the building with the intent to commit a felony therein. Chambers v. State, 68 Ga. App. 338 ( 23 S.E.2d 545); Pirkle v. State, 11 Ga. App. 98, 101 ( 74 S.E. 709). If the evidence would support mere presence of the defendant near the scene of the crime as much as it supports his participation therein it would not be sufficient. Demonia v. State, 66 Ga. App. 114 ( 17 S.E.2d 504); Orr v. State, 62 Ga. App. 774 ( 9 S.E.2d 917). An analysis of the evidence here shows, however, that this defendant was in this isolated spot at the unusual hour of approximately 2:30 a. m.; that he owned the automobile in which he was found by the officers in proximity to the burglary; that this same automobile had, a short time previous to the apprehension of the defendant, been parked very near the burglarized building; that footprints in the dust led from the automobile to the building and back again, indicating the use of the automobile in connection with the burglary; that, when the officers found the automobile with the defendant in it, it was parked in a lumber yard approximately 300 yards from the scene of the crime; that the identity of the automobile and the places where it was parked were established by the officers by a comparison of the tire tracks and the tread of the tires of the automobile in question; that the police interrupted two men who had entered the building and who fled in the general direction in which the automobile was parked when the officers approached; that the defendant's two brothers were found some hours later, the condition of their clothing suggesting that they had been in flight through briars and water; that from where the car was parked in the first instance there were signs indicating that someone had run through a thick briar patch toward a nearby creek; that the defendant was himself scratched and bleeding in a manner suggestive of recent flight; that the defendant lived some distance away in another county; and that his explanation of his presence was confused and self-contradictory. All these circumstances, not one of which is in itself sufficient to warrant a conviction, together warranted the defendant's conviction and excluded every other reasonable hypothesis save that of the guilt of the accused. Sanders v. State, 66 Ga. App. 128 ( 17 S.E.2d 251); Jackson v. State, 54 Ga. App. 413 ( 187 S.E. 893); Gregory v. State, 80 Ga. 269 ( 7 S.E. 222).
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.