Bryan v. State, 56639

• Decision Date: 14 December 1978
• Docket Number: No. 56639,56639
• Citation: 148 Ga.App. 428,251 S.E.2d 338
• Parties: BRYAN v. The STATE.
• Court: Georgia Court of Appeals

Page 338

251 S.E.2d 338

148 Ga.App. 428

BRYAN v. The STATE.

No. 56639.

Court of Appeals of Georgia.

Submitted Oct. 16, 1978.

Decided Nov. 22, 1978.

Rehearing Denied Dec. 14, 1978.

Kehir & Baker, Paul H. Kehir, Atlanta, for appellant.

Robert E. Keller, Dist. Atty., Clifford A. Sticher, Asst. Dist. Atty., for appellee.

QUILLIAN, Presiding Judge.

The defendant appeals from his conviction of theft by taking. Held :

1. The defense counsel and his client were the first to arrive in the trial courtroom. He placed his brief case and exhibits on the table nearest the jury and then he and the defendant departed for a cup of coffee in the cafeteria. When he arrived back in the courtroom, his briefcase and exhibits had been moved to another table and the table he formerly used was now occupied by the assistant district attorney. He brought this matter to the attention of the court and contended that "under the due process clause of the Constitution and under the equal protection clause of the Constitution, absent any local rule or any statute to the contrary, (the defendant "has a right" ) to be permitted to use any counsel table that he wishes that is available at the time."

The assistant district attorney stated when the defendant originally placed his articles upon the table that he was informed by the bailiff that the table he was attempting to use was "the table that the state uses in the trial of all cases in this county." Although this is hearsay, we will consider it as the basis for the subsequent actions of the assistant district attorney in removing the defense articles. Code § 38-302, Bowen v. State, 225 Ga. 423(1a), 169 S.E.2d 322.

The court pointed out to the counsel that the district attorney had always occupied that table, and the same policy was carried out in the other courtrooms. Counsel has cited no authority for this unusual assignment of error as a "constitutional right" and we have found none. "The judge has a discretion in regulating and controlling the business of the court, and the appellate court should never interfere with the exercise of this discretion, unless it is plainly apparent that wrong has resulted from its abuse." Clark v. Bd. of Dental Examiners, 240 Ga. 289, 292, 240 S.E.2d 250, 253. We find no abuse of discretion. See Loomis v. State, 78 Ga.App. 153(20), 51 S.E.2d 13; Code § 24-104.

2. Defendant moved for a directed verdict at the close of the state's evidence, contending there was a failure of the state to prove the value of the property was in excess of a value of $100, as alleged.

Only where there is no conflict in the evidence and a verdict of acquittal is demanded as a matter of law would it be error for the trial court to refuse to direct a verdict for the defendant. Code Ann. § 27-1802 (Ga.L. 1971, pp. 460, 461); Merino v. State, 230 Ga. 604(1), 198 S.E.2d 311.

Value is not an element, per se, of the statute defining the offense of theft by taking. See Code Ann. § 26-1802 (CCG § 26-1802; Ga.L.1968, pp. 1249, 1290; as amended through 1975, pp. 876, 877); Stancell v. State, 146 Ga.App. 773, 247 S.E.2d 587. However, value is relevant in ascertaining punishment to be imposed. Code Ann. § 26-1802 (CCG § 26-1812; Ga.L.1968, pp. 1249, 1295; 1972, pp. 841, 842); Mack v. Ricketts, 236 Ga. 86, 87, 222 S.E.2d 337. Thus, value can be an issue in any theft case, in the same manner as an element of the substantive offense itself. Furthermore, it has been the rule in both of our appellate courts, under antecedent statutes of Code Ann. § 26-1802, that "it must appear that the stolen property is of some value" or a conviction cannot be sustained. Sudan v. State, 68 Ga.App. 752(3), 23 S.E.2d 867); Accord, Hawkins v. State, 95 Ga. 458, 20 S.E. 217; Lane v. State, 113 Ga. 1040, 39 S.E 463; Portwood v. State, 124 Ga. 783(1) 53 S.E. 99; Taylor v. Means, 139 Ga. 578, 77 S.E. 373.

On a motion for directed verdict by a defendant made at the close of the prosecution's evidence, an appellate court can consider all evidence admitted during the trial, including that submitted by the defendant (Bethay v. State, 235 Ga. 371, 375, 219 S.E.2d 743), and if there is "any evidence" to sustain the ruling of the trial court, an appellate court will not disturb his decision. Peluso v. State, 139 Ga.App. 433, 434, 228 S.E.2d 395.

There was evidence of value offered by both sides. A security officer for the J. C. Penney outlet store testified that the value of the air compressor was $159.77. The defendant himself testified that "those air compressors cost like $600 or $700 for that type of air compressor. This was, I think, $150, something like that, dirt cheap." If there is "any evidence" that the property which is the subject of theft is of "some value" the conviction can be sustained. Dotson v. State, 144 Ga.App. 113, 114, 240 S.E.2d 238. There was substantial evidence of value. Thus, it was not error for the trial court to deny the motion for directed verdict based on lack of proof of value.

In Brown v. State, 143 Ga.App. 678, 239 S.E.2d 556, this court held that retail value or price is the standard to be used in establishing value in theft by taking from a retail establishment. This rule was reaffirmed in Young v. State, 144 Ga.App. 712(2), 242 S.E.2d 351. The value of the item was established to be in excess of $100. Cox v. State, 137 Ga.App. 794(1), 224 S.E.2d 845; Brown v. State, 143 Ga.App. 678, 239 S.E.2d 556, supra. This enumeration is without merit.

3. Defendant enumerates as error a ruling of the...