Brown v. State
| Decision Date | 17 October 1974 |
| Docket Number | No. 49615,No. 3,49615,3 |
| Citation | 209 S.E.2d 721,133 Ga.App. 56 |
| Parties | Preston BROWN v. The STATE |
| Court | Georgia Court of Appeals |
Frank B. Lanneau, III Macon, for appellant.
Edward E. McGarity, Dist. Atty., Kenneth Waldrep, Asst. Dist. Atty., McDonough, for appellee.
Syllabus Opinion by the Court
Defendant was indicted for burglary. He filed a motion to suppress certain evidence and after a hearing, the motion was denied. A trial was held, verdict of guilty was returned and he was sentenced to serve twelve years. Defendant appeals. Held:
1. During oral argument before this court, counsel for defendant suggested that his rights were being trampled upon in that, after te case and transcript reached this court, the court reporter in the lower court made a substitution of a certain search warrant for the one that had been sent to this court-and that counsel had been afforded no opportunity to contest this procedure. But where the parties do not agree that the transcript or record truly or fully discloses what transpired in the lower court, this matter must be resolved in the lower court. See Code Ann. § 6-805 (Ga.L.1965, pp. 18, 24). Here, the court reporter corrected the transcript by substituting a different exhibit submitted in evidence on the motion to suppress; and it is presumed that he properly discharged his duties in this respect. If not, the error should be corrected in the lower court. See Dalton v. State, 127 Ga.App. 504(2), 194 S.E.2d 268. See also in this connection, Smith v. Smith, 224 Ga. 689, 691(4), 164 S.E.2d 225. Defendant's counsel, under Code Ann. § 6-805, is afforded full protection through the right to appear in the lower court and be heard on this matter.
2. Several defendants were jointly indicted, and a number of search warrants had been obtained to search for stolen goods on several premises. If the corrected exhibit as now certified by a reporter (a search warrant for this defendant's premises) be not substituted for the original exhibit, there could be no reversal for illegal search of the premises under any circumstances. The original exhibit sent to this court with the transcript shows an affidavit in support of the search warrant for 'Betty Rose Spencer's house at 2147 Douglas Avenue, Macon, Ga.,' and a search warrant for Smokey Parker's at '1992 Lincoln.' When the search was made, nothing was seized, the officers' return stating-'Search made-nothing seized 12-15-73 5:30 p.m.' Thus, there would be no evidence to suppress for none was seized at this address. For us to even review the matter, the substituted exhibit by the court reporter must be considered.
Code Ann. § 6-805(f) states that: 'If anything material to either party is omitted from the record on appeal or is misstated therein, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, on a proper suggestion or of its own initiative, may direct that the omission or misstatement shall be corrected, and, if necessary, that a supplemental record shall be certified and transmitted by the clerk of the trial court.'
We have no way of knowing whether the court reporter was advised by someone of his error, or if he, of his own accord, discovered his error. Of course, under Code Ann. § 6-805, the trial court or the appellate court may at any time order the clerk of the trial court to send up any original papers or exhibits in the case.
3. The affidavit for search warrant of Rose Spencer's place of abode and the search warrant for Smokey Parker's show no goods seized, hence no evidence could be suppressed. But examination of defendant's motion to suppress alleges the evidence he seeks to suppress was seized at 'Apt. 94, Green Meadows Apts., Macon, Bibb County, Georgia.' The corrected exhibit to the transcript shows the affidavit and search warrant for this apartment, together with the return showing the evidence defendant seeks to suppress. Thus, regardless of defendant's request that we not consider this corrected exhibit to the transcript, we find it proper to examine same and find it properly prepared and not subject to the attack made thereon. The trial court did not err in denying the motion to suppress.
4. Testimony as to the defendant's fingerprint found in the burglarized establishment was circumstantial in nature and properly allowed in evidence; the weight and value thereof being a question for the jury to determine. See Kryder v. State, 75 Ga.App. 34, 36(3), 41 S.E.2d 824; Anthony v. State, 85 Ga.App. 119, 121, 68 S.E.2d 150; Miller v. State, 122 Ga.App. 553(1), 177 S.E.2d 838. But to warrant a conviction on the fingerprint testimony alone circumstances must be such that they could only be impressed at the time when the crime was committed. Miller v. State, 122 Ga.App. 553, 554, 177 S.E.2d 838, supra; Anthony v. State, 85 Ga.App. 119, 121, 68 S.E.2d 150, supra.
5. The evidence connecting the defendant with the crime of burglary was circumstantial. the burglary occurred on December 13, 1974. Stolen goods were found in defendant's possession on December 15, 1974, two days later. This was sufficient to satisfy the requirements of the circumstantial evidence rule found in Code § 38-109. Possession of recently stolen goods, unexplained to the satisfaction of the jury, authorizes an inference of guilt of burglary. Brown v. State, 125 Ga.App. 300, 302, 187 S.E.2d 301; Mathews v. State, 103 Ga.App. 743, 120 S.E.2d 359; Tarver v. State, 95 Ga. 222, 21 S.E. 381; Myerholtz v. State, 109 Ga.App. 352(1), 136 S.E.2d 165; Cheatham v. State, 57 Ga.App. 858, 859, 197 S.E. 70. The stolen goods were found in defendant's possession two days after the burglary with the same price tags still attached. The jury may consider 'the length of time which had elapsed since the burglary, and the difficulty or impossibility on the part of the accused to account for his possession of the stolen property.' Lundy v. State, 71 Ga. 360, 361.
6. The third enumeration of error gives us the most concern in this case. It is urged by defendant that the trial court abused its discretion and would not hear from counsel on the issue of suspension or probation of sentence.
The following occurred, according to the transcript (p. 134), after the jury returned its verdict fixing sentence of defendant at 12 years.
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