Barnes v. State, 65071
| Court | United States Court of Appeals (Georgia) |
| Citation | 164 Ga.App. 631,298 S.E.2d 311 |
| Docket Number | No. 65071,65071 |
| Parties | BARNES v. The STATE. |
| Decision Date | 03 December 1982 |
Jack Affleck, Legal Aid & Defender Society, Athens, for appellant.
B. Thomas Cook, Jr., Asst. Dist. Atty., Harry N. Gordon, Dist. Atty., Athens, for appellee.
Defendant was convicted of 13 counts of burglary and also as a recidivist. Defendant's motion for new trial was filed, heard and denied and he appeals. Held:
1. The first enumeration of error contends that the trial court erred in charging the law as to persons concerned in the commission of a crime when a defendant directly commits the crime himself or intentionally aids and abets in the commission of the crime by another. Defendant contends there was no evidence adduced at trial to show the alleged offenses were committed by more than one individual. However, in this instance the connecting theme with all of the 13 burglaries was the state's evidence that fingerprints and/or palm prints were found at the scene where the crimes were committed and under such circumstances that they could only have been impressed at the time the crime was committed. Expert testimony was produced connecting these finger and palm prints to known prints of this defendant. In addition to this testimony voices were heard in one dwelling shortly before the burglary was discovered and the volume of items taken from the various dwellings was sufficient to authorize the jury to conclude that more than one person could have been involved in the burglaries. In addition the burglaries occurred in dwellings in which no one was at home at the time of the burglary and the motive for same in all instances was an entry for the purpose of intending to steal valuables inside the premises, the crimes having occurred over a period of seven months. Thus, there was slight evidence to justify the charge as to parties to the crime with reference to these 13 burglaries as two or more persons could have been involved. See Heard v. State, 149 Ga.App. 92, 93(2), 253 S.E.2d 454; Smith v. State, 154 Ga.App. 258, 259(5), 267 S.E.2d 863. Compare Battle v. State, 231 Ga. 501, 202 S.E.2d 449; Liggins v. State, 239 Ga. 452, 454(3), 238 S.E.2d 34; Thomas v. State, 242 Ga. 712, 717, 251 S.E.2d 294; Alexander v. State, 150 Ga.App. 41, 42(1), 256 S.E.2d 649. But even if the evidence was such as to find there was insufficient evidence to justify the charge, we find no harmful error, as defendant has failed to show any injuries as a result of the alleged error. See Hill v. State, 237 Ga. 794, 799(5), 229 S.E.2d 737; Hall v. State, 202 Ga. 619, 620, 44 S.E.2d 234. This enumeration of error is not meritorious.
2. The second enumeration of error contends that the trial court should have charged the request to charge on the lesser included offense of criminal trespass, that is, that a person commits criminal trespass when he knowingly and without authority enters on the premises of another for an unlawful purpose, the elements of the offense being that the defendant was the perpetrator, that he knowingly entered without authority the premises of another for an unlawful purpose. Defendant contends that State v. Stonaker, 236 Ga. 1, 2(3), 222 S.E.2d 354, required that this charge be given in this instance. However, the purpose as to every entry was shown to involve an intent to steal and for no other unlawful purpose. Here the defendant never admitted entering the buildings under any circumstances. Therefore, the only two possibilities raised is that there was either a burglary by the defendant whose fingerprints and/or palm prints were found or same was not committed by the defendant. A charge on criminal trespass was not authorized by the evidence. See Deese v. State, 137 Ga.App. 476, 477(3), 224 S.E.2d 124. In Williamson v. State, 134 Ga.App. 583, 215 S.E.2d 518, the defendant admitted entering the building and this court ruled that the jury might have believed that the defendant in that case might have entered...
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