Bacon v. State, 33691

• Decision Date: 27 February 1952
• Docket Number: No. 33691,Nos. 1,2,33691,s. 1
• Citation: 85 Ga.App. 630,70 S.E.2d 54
• Parties: BACON v. STATE
• Court: Georgia Court of Appeals

Page 54

70 S.E.2d 54

85 Ga.App. 630

BACON v. STATE.

No. 33691.

Court of Appeals of Georgia, Division Nos. 1, 2.

Feb. 27, 1952.

Rehearing Denied March 13, 1952.

Syllabus by the Court.

1. The provision in the Code, § 26-2401, defining the offense of burglary, to the effect that 'a hired room or apartment in a public tavern, inn or boarding house shall be considered as the dwelling house of the person occupying or hiring the same,' applies to a room of a house which is rented from the owner by a tenant who occupies the same as his dwelling.

2. The general rule is that it is not competent in a prosecution for one offense to introduce evidence of another distinct and independent crime; but to this rule there are exceptions. Among them is evidence of similar, independent criminal transactions tending to prove intent, if such element enters into the crime charged. Such evidence is admissible to illustrate or establish the guilty intent, and this exception to the general rule is as fully established and recognized as the general rule itself.

3. The evidence authorized the verdict.

Leroy Bacon was tried and convicted in the Superior Court of Chatham County of burglary. The prosecuting witness testified that his upstairs room in a rooming house run by him for his sister-in-law had been broken into in December, 1950, the door being jimmied and a window opening onto a second-story porch broken, and that certain articles were taken which were later found in the possession of the accused. He further testified that three or four people lived with him on the same floor, the only entrance to which was by a stairway and door opening onto the street, which was supposed to be kept locked but which in fact was often open. A police officer testified to finding the articles in the accused's possession and to his confession of having taken them. He also identified the accused as the person he had arrested while attempting to burglarize a store by breaking and entering through a rear window late in the previous month, and had again arrested later in the same month while endeavoring to remove a window from the back porch of a residence. Three accusations charging attempts to commit burglary in 1950, and three indictments charging burglary in 1946 with pleas of guilty by the defendant thereon were also admitted in evidence over objection.

The jury returned a verdict of guilty as to the crime charged, whereupon the defendant made a motion for a new trial. This motion, as later amended, was overruled, by the trial court, and this judgment is assigned as error.

Joseph B. Cramer, Savannah, for plaintiff in error.

Sylvan A. Garfunkel, Kirk McAlpin, Asst. Sols. Gen., Andrew J. Ryan, jr., Sol. Gen., Savannah, for defendant in error.

MacINTYRE, Presiding Judge (after stating the foregoing facts).

1. (a) The first ground of the amended motion for a new trial contends that the State failed to prove the elements of burglary, in that it failed to show a breaking and entering of the house of the prosecuting witness. It is true that there was no evidence as to whether the exit door from the second floor opening onto the street was open or closed, locked or unlocked. There was, however, undisputed evidence that the lodgings of the witness were on a part of the second floor, which was divided between several families, and that these lodgings were broken and entered, an attempt being made to jimmy the door, and the window which gave to the porch opening onto the hall having been broken. The room which was broken into was the particular living quarters of the witness, and was kept locked from the rest of the house, including the hall and stairway which was shared by other tenants and their guests and invitees. As stated in Daniels v. State, 78 Ga. 98, 101: 'It is well settled, by a number of cases, that where a party is indicted for breaking and entering an outhouse within the curtilage or protection of a mansion or dwelling, the burglary should be laid as having been done in the dwelling house. 1 Wharton's Cr.L. § 815 and cit. If this be true as to an outhouse, a fortiori would it be so as to an apartment in the house, a party's place of business in which his goods, wares, etc. were stored or contained, and which was broken and entered with an intent to commit a larceny upon the articles of value therein contained.' It was held in Boyd v. State, 4 Ga.App. 273, 61 S.E. 134 that, where a rented room of a boarder or lodger is burglarized, ownership may be laid in either the general or special occupant. Keeping these constructions of Code, § 26-2401, defining burglary, in mind, it is obvious that the sentence, 'A hired room or apartment in a public tavern, inn, or boarding house shall be considered as the dwelling house of the person occupying of hiring the same', is broad enough to cover a 'rooming house' as well as a 'boarding house,' and the mere fact that the witness failed to serve meals to his lodgers would not in itself prevent the breaking and entering of his room from constituting a burglary. The first ground of the amended motion is without merit.

(b) For the reason above set, out the part of the charge that, 'if this man broke and entered the room of this other man used as his residence, coming up the steps, he would be just as guilty of burglary as if he had opened the bottom door downstairs to come in,' is a correct statement of the law in this case and the fourth ground of the amended motion for a new trial is also without merit.

2. The evidence of other transactions committed by the defendant, and objected to in the instant case, was that of other burglaries. In I Wharton's Criminal Evidence (10th ed.) 59, § o0, it is said: 'A defendant ought not to be convicted of the offense charged against him simply because he has been guilty of another offense. Hence, when such evidence is offered simply for the purpose of proving his commission of the offense on trial, evidence of his participation, either in act or design, in commission or preparation, in other independent crimes, cannot be received. This rule obtains strictly, however, only where proof is offered of such independent offense to show that by reason of such independent offense the accused is more likely to have committed the one for which he is on trial. The rule is that evidence of such collateral offense must never be received as substantive evidence of the offense on trial; and it extends to the proof of the accusation of another crime, as well as to evidence of its actual commission.' It seems to us that the Supreme Court of Georgia has adopted essentially the same general rule as that stated above by Wharton. In Goodman v. State, 184 Ga. 315, 191 S.E. 117, quoting from Frank v. State, 141 Ga. 243, 80 S.E. 1016, it is said: "As a general rule, evidence of the commission of one crime is not admissible upon the trial for another, where the sole purpose is to show that the defendant has been guilty of other crimes, and would, therefore, be more liable to commit the offense charged; but if the evidence is material and relevant to the issue on trial, it is not inadmissible because it may also tend to establish the defendant's guilt of a crime other than the one charged.' (Italics ours.) And the court in that case held that the evidence of another crime, there objected to, was admissible as coming within one of the exceptions to the general rule.

On the subject of the various exceptions to the general rule, Wharton (Ibid., pp. 59, 60, § 31) has this to say: 'Certain exceptions exists, however, to the rule just stated [the general rule]. These exceptions fall under the following general divisions: (1) Relevancy as part of res gestae. (2) Relevancy to prove identity of person or of crime. (3) Relevancy to prove scienter, or guilty knowledge. (4) Relevancy to prove intent. (5) Relevancy to show motive. (6) Relevancy to prove system. (7) Relevancy to prove malice. (8) Relevancy to rebut special defenses. (9) Relevancy in various particular crimes. It is recognized that in many instances the line of demarcation is not clear, but the discretion vested in the trial judge, intelligently and considerately exercised, will enable the prosecution fully to present the charge, on the one hand, and, on the other hand to protect the accused and secure to him the rights guaranteed to him by the constitution and the laws.' In Cox v. State, 165 Ga. 145, 139 S.E. 861, the Supreme Court recognized essentially the same exceptions to the general rule as those stated above by Wharton when that court stated: 'When one is on trial charged with the commission of a crime, proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. This is the general rule, but there are some exceptions to it; as when the extraneous crime forms part of the res gestae; or is one of a system of mutually dependent crimes; or is evidence of guilty knowledge; or may bear upon the question of the identity of the accused [or the crime], or articles connected with the offense; or is evidence of prior attempts by the accused to commit the same crime upon the victim of the offense for which he stands charged; or where it tends to prove malice, intent, motive, or the like, if such an element enters into the offense charged.' The court in that case held that under the facts of that case, the evidence of other crimes sought to be introduced did not come within any of the exceptions and was, therefore, inadmissible.

In Wilson v. State, 173 Ga. 275, 284, 160 S.E. 319, cited in the Goodman case, supra, along with the Cox case, supra, the Supreme Court held that the evidence there of other crimes came within one of the exceptions to the general rule and was admissible. See also in this connection, Dorsey v. State, 204 Ga. 345, 350, 49 S.E.2d 866. In State v. Donaluzzi, 94 Vt....