Coley v. State

• Decision Date: 24 September 1975
• Docket Number: No. 2,No. 50933,50933,2
• Citation: 219 S.E.2d 35,135 Ga. App. 810
• Parties: Tommy COLEY et al. v. The STATE
• Court: Georgia Court of Appeals

Page 35

219 S.E.2d 35

135 Ga.App. 810

Tommy COLEY et al. v.The STATE.

No. 50933.

Court of Appeals of Georgia, Division No. 2.

Sept. 24, 1975.

Barry W. Bishop, Canton, for appellants.

C. B. Holcomb, Dist. Atty., Frank C. Mills, III, Asst. Dist. Atty., Canton, for appellee.

PANNELL, Presiding Judge.

Appellants were indicted, tried and convicted of burglary, and were sentenced to fifteen years imprisonment.They appeal the judgment of conviction.

On August 10, 1974, appellants were arrested for motor vehicle theft.A search incident to arrest disclosed a knife on the person of each appellant.September 11, 1974, appellants were indicted for burglarizing a store.One of the items taken during the burglary was a case of knives.

Appellants made a motion to suppress the knives found on appellants.A hearing was held, and the motion to suppress was denied.The knives were introduced at the trial, over the objection of defense counsel.

1.In laying the foundation for the introduction of the knives at the trial, the State elicited the facts surrounding their discovery.Thus, the jury was made fully aware of defendants' arrest for motor vehicle theft.Appellants do not enumerate error respecting the introduction of this evidence regarding the motor vehicle theft.However, they do enumerate error in the State's eliciting testimony from other witnesses which they contend introduced evidence of appellants' involvement in a motor vehicle theft.They argue that the introduction of this evidence placed defendants' character in issue and constituted reversible error.SeeBacon v. State, 209 Ga. 261, 71 S.E.2d 615.

Assuming, but not deciding, that the objected to testimony did in fact introduce evidence of defendants' involvement in the arrest for motor vehicle theft, and was error for the reasons assigned, it was harmless error.The jury was informed as to defendants' arrest for motor vehicle theft when the foundation was laid for the introduction of the knives into evidence.None of the objected to testimony produced any evidence not already introduced and heard by the jury.

2.One of the witnesses testified that he participated with defendants in the commission of the burglary.He further testified that the defendants also burglarized another store later the same night, but he did not know the identity or location of the other store.Appellants enumerate error in the trial court's allowing testimony regarding another burglary on the ground that the introduction of this evidence placed the character of appellants in issue.SeeBacon v. State, 209 Ga. 261, 71 S.E.2d 615, supra.

Evidence of other criminal acts may be admitted to show motive and intent.SeeFoster v. State, 230 Ga. 666, 667, 198 S.E.2d 847.The court in Bacon v. State, supra, held that evidence of criminal acts were not admissible for the purpose of showing criminal intent unless there was a logical connection between the extraneous criminal acts and the case on trial.The offenses involved in Bacon were 'wholly distinct, independent, and separate' from the case on trial.In the present case, there was a logical connection between the burglary for which appellants were tried and the burglary committed by appellants later that night.The two burglaries were part of one continuous transaction.There being a logical connection between the crime charged and the burglary committed at an unknown location that same night, testimony regarding the latter burglary was properly admitted to prove motive and intent.

3.The State elicited testimony on cross-examination of both appellants regarding their escape from the county jail.On re-direct examination of appellant Coley, defense counsel attempted to question Coley regarding the conditions of the jail.The trial judge ruled out this line of questioning as being immaterial to the issues in the case.Appellants allege error in the court's ruling out of this testimony in that it showed defendants' state of mind and motive in relation to their escape from jail.

'The fact that one who has done an act which may amount to a crime immediately flees may always be given in evidence as tending to show guilt, but should always be considered by the jury in connection with the motive that prompted it, and, at most is only one of a series of circumstances from which guilt may be inferred.'Smith v. State, 106 Ga. 673(2), 32 S.E. 851.Although the jury is to consider the motive prompting escape, we do not feel that the condition of the jail would justify an escape nor constitute a motive tending to show that the escape was not prompted by a sense of guilt.'Where on is confined by lawful authority it is his duty to submit until delivered by due process of law.'Grimes v. Burch, 223 Ga. 856, 858, 159 S.E.2d 69, 70.'Prisoners charged with escape have occasionally tried to justify the offense by claiming that the conditions of imprisonment were so intolerable that the confinement became unlawful, but this has not been recognized as a justification.State v. Palmer, 45 Del. 308, 72 A.2d 442;State v. King(Mo.), 372, S.E.2d 857.The fact that a jail is filthy or unhealthful . . . does not justify his attempt to escape from confinement.State v. Davis, 14 Nev. 439.'27 Am.Jur.2d 858, Escape, § 16.

The court did not err in excluding testimony regarding the condition of the jail.

4.Appellants contend that the...