Coleman v. State, 51827
| Decision Date | 17 February 1976 |
| Docket Number | No. 51827,No. 1,51827,1 |
| Parties | J. C. COLEMAN, Jr. v. The STATE |
| Court | Georgia Court of Appeals |
Gilberg, Baynard & Owens, Robert E. Baynard, Albany, for appellant.
William S. Lee, Dist. Atty., Loring A. Gray, Jr., Daniel MacDougald, III, Asst. Dist. Attys., Albany, for appellee.
Defendant was convicted of the burglary of a building owned by Goodyear Tire and Rubber Company. He appeals from the denial of his amended motion for a new trial and from the judgment. Enumerated as error are the general grounds, the denial of defendant's motion for a directed vardict of acquittal, and various portions of the court's charge to the jury. Held:
1. Officer Green apprehended defendant within one block of the burglarized Goodyear Store while he as carrying a television set. At the time of his capture, defendant's finger was bleeding profusely and he was taken to a hospital. Investigation revealed the window of the Goodyear Store had been broken and the interior of the store was filled with blood. The store manager identified the television set defendant was carrying as one owned by Goodyear and missing from the burglarized establishment. In addition, following his arrest defendant was observed in the hospital attempting to conceal a sales tag which was identified as having been on the stolen television.
Defendant denied possession of the television and contended at trial that he was merely walking past the Goodyear Store on the opposite side of the street. He further stated he had accidentally cut his finger with a beer bottle. However, in previous statements given to the police, he asserted that someone had cut him with a knife in front of the Boodyear Store, that someone had pushed him through the store window, and that he had found the television set.
Defendant's contradictory assertions failed to explain his possession of the television or the sale tag and do not raise a reasonable hypothesis of innocence consistent with the circumstantial evidence presented. The evidence showing defendant's possession of the stolen item and of the sales tag, shortly after the burglary and within a block of the burglarized store, together with the circumstance of defendant's bleeding finger and the blood-filled store, was sufficient to authorize the jury's verdict. Accordingly, the trial court's refusal to grant a new trial on the general grounds and its refusal to direct a verdict of acquittal are not error.
2. Defendant contends that the court's instruction on alibi was erroneous in that it was unwarranted by the evidence. At trial, however, defendant contended that he had been at a bar earlier in the evening and had not walked by the Goodyear Store until he was arrested (after the burglary). This testimony sufficiently raised an assertion of alibi. Even if it did not, however, the court's instruction on this matter could only have benefited defendant by giving him an additional basis upon which the jury could have formed a reasonable doubt as to his guilt. As defendant has shown neither error nor harm, this enumeration is without merit.
3. The trial court instructed the jury on the provisions of Code § 26-801 involving parties to a crime. Contrary to defendant's contention, the evidence warranted this charge. Defense counsel, in his cross examination of Detective Hesser, brought out the fact that numerous televisions which had been taken during the burglary had not been recovered. Defense counsel also asked the detective whether, in his opinion, 'there may have been additional people involved' in the burglary. (T.59). The detective's affirmative reply to this question, together with the other circumstances of this case, formed a sufficient basis for an instruction on parties to a crime. See Montgomery v. State, 128 Ga.App. 116, 117(3), 195 S.E.2d 784.
4. Defendant's contention that the court's charge on unexplained possession of recently stolen goods constituted an expression of opinion is without merit. 'To declare the law applicable to a given state of facts, is no expression or intimation of opinion as to whether any of the facts referred to do or do not exist in the case on trial.' Yarborough v. State, 86 Ga. 396(2), 12 S.E. 650; Brawner v. State, 81 Ga.App. 163, 58 S.E.2d 238.
5. The court charged: 'The defendant enters upon his trial with the presumption of innocence in his favor and this presumption remains with him throughout the trial unless and until it is...
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