Opinion
32168.
DECIDED NOVEMBER 6, 1948.
Burglary; from Walker Superior Court — Judge Porter. June 21, 1948.
Chastine Parker, James R. Venable, Jackson L. Barwick, for plaintiff in error.
E. J. Clower, Solicitor-General, contra.
1. The evidence amply sustains the verdict and the exceptions based thereon are not meritorious.
2. The motion for continuance is addressed to the sound discretion of the trial judge and this discretion will not be disturbed unless manifestly abused.
3. If admissibility of evidence is doubtful, the evidence should be admitted and its weight and effect should be left for the jury's determination. The modern tendency is to relax rather than to restrict the rules as to the admissibility of evidence to the end that the discovery of truth should be aided rather than obstructed.
4. It is not error to charge "any removal by the defendant of those things which are usually found in a house to protect a house from intruders from the outside, would be a breaking within the law. . . It is such force as would be necessary to break into a house and which destroys or puts out of the way those safeguards about a house that are intended to protect the house from intruders from without."
5. "The affidavits of jurors may be taken to sustain, but not to impeach their verdict."
DECIDED NOVEMBER 6, 1948.
The indictment was returned at the February term of court. The trial was had on February 25. The defendant filed his amended motion for a new trial, which the court overruled. On this judgment of the court the defendant assigns error. The record is rather lengthy, consisting of 117 pages. The brief of evidence contains 90 pages of typewritten matter. The defendant introduced no evidence, but made a statement consisting of approximately 16 pages of typewritten matter in which he sought to argue and explain away practically all of the evidence of the State, in detail. We will not here relate too much in detail the State's evidence, but in view of certain contentions made in the special grounds of the amended motion, we deem it better to summarize at some length the State's evidence. The defendant first comes into the picture, according to the record, in the Town of Summerville, Georgia, at a filling station, about 12:45 a. m. on December 14, 1947, where he was obtaining gas and refreshments. While there, two policemen cruising the city (and the record does not reveal that at that time they had any knowledge of the burglary in question) for some reason became suspicious of the occupants of the car. In the car was the defendant and a companion. The companion was driving the car, a black Ford sedan. All the evidence for the State shows that this was the car of the defendant, and he in his statement admitted it. As the officers approached the car at the filling station for the purpose of making further investigation, the car moved off. The officers followed it out of the city limits down the highway, for several miles. The car in which the defendant and his companion were riding increased its speed and so did the officers. The officers blew the siren on their car and finally the car of the defendant pulled to the side of the road onto and partly over an embankment. The officers alighted from their car. So did the defendant and his companion (so far as the record reveals, the companion has never been arrested). During the investigation by the officers, the officers and the defendant and his companion became engaged in a difficulty. While one of the officers was making an examination of the car and its contents, the defendant procured the pistol of one of the officers. His companion had a pistol, and the other officer had a pistol. In the rencounter, the other officer secured the companion's pistol and the companion procured the policeman's blackjack. There was shooting between the officers and the other men. One of the officers left the scene from fright and later the other officer was made to leave by the defendant and his companion. Before the officers left the scene, they observed the contents of the car. The first officer who left was not located until the next morning, when he appeared in town. The other officer did not leave the view of the scene, but walked across the road and hid himself beneath a culvert with his head sufficiently above the culvert to view the activities of the defendant and his companion around the cars, that is, the defendant's car and the policemen's car, which were there. This officer, watching the activities of the defendant and his companion, testified that he saw them move articles from the car and place them besides the road in and on some underbrush. The defendant and his companion were unable to ignite the motors of either of the cars. After having removed the articles from the car of the defendant, the officer watching them from the culvert returned to Summerville by foot. When the officer who viewed the car returned to Summerville, the defendant was also in Summerville at a filling station and the officer arrested the defendant. At that time the defendant had the officer's pistol. After the arrest of the defendant, the Sheriff of Walker County and numerous others, went to the scene of the cars. They found various articles in the car of the defendant, including a slip of paper bearing the name of J. A. Wardlaw, who was president and manager of the Coca-Cola Bottling Works of LaFayette. Upon further search they found, a short distance from the car, a zipper bag which the police officers observed to be in the car of the defendant at the time they stopped it. They also found, in or about the car, numerous government bonds, dynamite, glycerine, wires, tools, etc., in fact everything necessary and commonly used by burglars in blowing safes. After arrest, the defendant admitted that it was his car. They found in the trunk of it considerable wearing apparel which the defendant admitted was his and which was turned over to him. It was shown by experts that there was dynamite and nitroglycerine substance on the mat of the car similar in kind to that found elsewhere at the scene where the car was stopped on the highway by the police officer. The bonds and other documents found around that scene were also located and returned to the Wardlaws and the Coca-Cola Bottling Works. There were other valuable documents, such as checks, etc., proved to have been in the storehouse of the Coca-Cola Bottling Works, before it was burglarized, which were procured from the car and around it at the place where the police officers forced it to stop. All of these articles that were recovered were introduced in evidence. There was something over $1000 in cash taken from the safe. The evidence does not reveal that any of that was recovered. The zipper bag, found a short distance from the car, as well as the other articles mentioned, was introduced in evidence, some of it over objections of the defendant's counsel and some not. The introduction of the zipper bag containing tools was over the objections of the defendant's counsel. Such, in brief, but in no wise in detail, is the evidence for the State.
The defendant in his very lengthy statement denied any knowledge of the burglary, stated that he was drinking, met up with his companion in Atlanta and they were on their way to Memphis when his companion got mad and decided that they would return to Atlanta. He denied any knowledge of the zipper bag, the dynamite, the nitroglycerine and other burglary appliances. He admitted in his statement, substantially, what the police officers testified took place between them at the place where the officers stopped the car, with the exception of moving anything from the car. In his statement he contended that he gave the officers the name of his companion, that is, Jimmie Wynn, but that Jimmie Wynn had many aliases and was the worst hunted criminal the defendant knew; that he, the defendant, did not know of the record of his companion at the time he met with Jimmie Wynn and they started to Memphis. The sheriff, recalled, testified that the defendant did give the name of Jimmie Wynn as his companion. The sheriff further testified that when he inquired of the defendant where the defendant had met Jimmie Wynn that the defendant said "in Memphis" and upon further inquiring of the defendant where he was going, the defendant stated that he was going to Florida, whereupon the defendant stated that he was going down there to start a gambling house and that he had found out Jimmie Wynn was a good gambler and that he wanted to take Jimmie Wynn down there with him and that was the reason he had Jimmie Wynn with him.
1. General grounds: Eminent counsel for the defendant devote very little argument in their brief to the general grounds. They merely say that the evidence was circumstantial and that for this reason the court should reverse the trial judge on this ground. It would seem to us, even from what we have set out above, that this contention is untenable and without merit.
2. Special ground 1 assigns error on the overruling, by the trial court, of a motion for continuance. Counsel for the defendant, J. R. Venable, when the case was called, made a motion for a continuance on the ground that an attorney of Rome, Georgia, Chastine Parker, was sick and that he had a doctor's certificate to that effect and the doctor had advised Mr. Parker to go to Florida, and that Mr. Parker expected to conduct the case, although Mr. Venable was to be there. Counsel further stated that the defendant himself was sick, suffering from a kidney ailment and running a high temperature and blood pressure and that the defendant was unable to go to trial. The court stated to Mr. Venable that Mr. Parker spoke to the judge about that and that Mr. Parker told the court that Mr. Venable was leading counsel. Whereupon Mr. Venable stated that he expected Mr. Parker to conduct the case. Then it was that the court remarked "he [meaning Parker] didn't tell me that." Then at the insistence of the solicitor-general the case was ruled to trial. There was no evidence that the defendant himself was too sick to go to trial except the statement of counsel. Counsel for the defendant designated Mr. Parker as the local counsel and stated that Mr. Parker was more familiar with all the jurors and the political situation in Walker County, but it appeared that Mr. Parker lived in Rome and not in Walker County. Mr. Venable further stated to the court that he had just received a copy of the indictment through the mail the day before the trial. It is contended that the overruling of this motion for a continuance violated the defendant's constitutional rights, under the due process clause both of the State and the United States Constitution, to have an attorney represent him. It will be noted that this offense was alleged to have been committed on December 13, 1947, and the defendant was placed in jail and shortly thereafter was released on bond. He was indicted at the February term of the Walker Superior Court in 1948 (the exact date is not given, but it was several days before the trial on February 25th). It does not appear just when Mr. Venable or Mr. Parker were employed by the defendant. It appears that during the trial an attorney, Paul W. Painter, assisted chief counsel Venable. It is conceded by counsel for the defendant that a motion for continuance is within the discretion of the court, taking into consideration the case and all the circumstances in connection therewith. When we consider these things, we can not say that the court abused its discretion in overruling the motion for continuance. It appears quite certain that the defendant, as well as counsel who conducted his trial, was well aware of the charge against the defendant, and the record reveals that he was ably represented and that he could not, at some future date or hereafter, have been better represented. Counsel recite numerous decisions containing different facts from those here, to sustain their position. They particularly call our attention to Chivers v. State, 5 Ga. App. 654 ( 63 S.E. 703); Walker v. State, 194 Ga. 727 ( 22 S.E.2d 462). The facts in those cases differentiate them from the facts in the instant case, as do all other decisions cited. See State Highway Department v. Peavy, 77 Ga. App. 308 ( 48 S.E.2d 478). The court did not abuse its discretion in overruling the motion for continuance. This special ground is without merit.
3. There is no special ground 2. Special ground 3 assigns error because the court admitted, over objections, the State's exhibits 3 through 20, and the various bonds designated "a" through "f." Counsel objected, at the time, to admission of "these tools, this jar and caps, wire, and these other articles that have been identified," on the ground that there is no evidence showing connection between such objects and the ones by which the safe was alleged to have been blown, and that they were irrelevant and inadmissible. After this objection the court stated "I will let that in for what they may be worth." These articles are those which were recovered by the officers in and about the car of the defendant when he was stopped by the police officers on the highway. We think they were admissible for consideration by the jury. If the admissibility of evidence is doubtful, the evidence should be admitted. See Brown v. Wilson, 55 Ga. App. 262 ( 189 S.E. 860). The modern tendency is to relax rather than to restrict the rules as to the admission of evidence, to the end that the discovery of truth may be aided rather than obstructed. Dade County v. State, 77 Ga. App. 139 ( 48 S.E.2d 144). This ground is without merit.
4. Error is assigned in special ground 4 on an excerpt from the charge as follows: "Any removal by the defendant of those things which are usually found in a house to protect the house from intruders from the outside, would be a breaking within the law." We see no error in this excerpt, particularly as being erroneous as an abstract principle of law. Moreover, this is but the first sentence of the judge's charge on the subject of what constitutes breaking in the offense of burglary. The whole paragraph on the subject reads: "Any removal by the defendant of those things which are usually found in a house to protect the house from intruders on the outside would be a breaking within the law. It is a breaking within the law to raise a window that is found down, or to break a glass of a window and raise the latch and raise the window afterward, or to turn the knob of a door and enter by that means. It is such force as would be necessary to break into a house and which destroys or puts out of the way those safeguards about a house that are intended to protect the house from intruders from without. Then there must be an entering into the house after the breaking and this must be done with an intent to commit a larceny [or felony]." This charge is true, to our minds, as an abstract principle of law. The evidence shows that the Coca-Cola Bottling Works was entered by breaking the latch on a shutter or window which was fastened from the inside. This ground is without merit.
5. Special ground 5 assigns error because the court admitted, over the objections of the movant's counsel, the zipper bag containing tools which we have hereinbefore described as being found on underbrush a short distance from the car of the defendant where it was stopped by a police officer on the highway. The bag was admitted as containing certain tools. The bag was sent out with the jury. It is contended in this ground that the jury, upon opening the bag and examining its contents, found therein a receipted bill in the name of the defendant, R. A. Manners, for work on the defendant's automobile involved. It is contended that the defendant, having objected to the admission of the zipper bag and the tools therein and at all times disclaiming any interest in or knowledge of the bag and its contents, was prejudiced by the finding of this receipted bill for repairs to the defendant's car, because the receipted bill had not been introduced as evidence, but only the zipper bag and the tools therein. The record reveals that the zipper bag and the tools therein were examined by the defendant before having been admitted in evidence. It appears that this assignment of error is without merit for two reasons: First, the attorneys for the defendant had full opportunity to examine the contents of the bag before the contents were submitted for the consideration of the jury. They did not do this. If they had done so, no doubt they could by proper diligence, have discovered the receipted bill in the bag and it would have either been excluded from the consideration of the jury or the case reopened by the court and the question of the receipted bill been thus open for consideration as to whether it should have been admitted also in evidence. In the consideration of this ground and on this point we think the court was justified in overruling the assignments of error on this ground because of the dereliction in duty on the part of the defendant. This is true, notwithstanding the affidavit of counsel for the defendant and the defendant himself to the effect that they did not know that the receipted bill was in the zipper bag. Second, the more serious defect in the assignment of error in this ground is that the only evidence to the effect that the jury considered the receipted bill is brought to knowledge by an affidavit of one of the jurors who returned a verdict of guilty. He stated, and he is the only one who did, that the jury found this receipted bill and read it. It is the law of this State, that the affidavit of jurors may be received to sustain but not to impeach their verdict. Code § 110-109; Fulton County v. Phillips, 91 Ga. 65 ( 16 S.E. 260); Peagler v. Huey, 183 Ga. 677 (3) ( 188 S.E. 906); Gossett v. State, 203 Ga. 692 ( 48 S.E.2d 71). So the contention that the consideration of a document not introduced in evidence influenced the verdict against the defendant and to his prejudice and therefore should be reversed, is not well founded, under the facts of this case. This ground does not require a reversal.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.