Davis v. State

• Citation: 105 Ga. 808,32 S.E. 158
• Parties: DAVIS. v. STATE.
• Decision Date: 19 November 1898
• Court: Supreme Court of Georgia

32 S.E. 158

(105 Ga. 808)

DAVIS.

v.STATE.

Supreme Court of Georgia.

Nov. 19, 1898.

Burglary—Evidence—Variance—Confession.

1. On the trial of a person charged with burglary, by breaking and entering a railroad depot with.intent to steal therefrom certain goods, it was not error in the court to refuse to rule out testimony of a witness who swore from his memory, after having made a personal examination of the goods, what amount of the particular class alleged to have been stolen was shipped and stored in the depot before the burglary, and what quantity had been missed therefrom after the breaking and entering, although it appeared that the amount of such goods was also indicated by waybills in the custody of the witness.

2. Where, on the trial of an indictment for burglary which charged the accused with breaking and entering the depot of the "Chattanooga Southern Railroad Company, " proof was made by the state that the depot of the company named was burglariously entered as charged, testimony, offered in behalf of the defendant, to the effect that the corporate name of the owner of the depot was "Chattanooga Southern Railway Company, " even if admitted, would not establish a material variance between the allegations in the indictment and the proof.

3. Proof of the corpus delicti may be sufficient corroboration of a confession of guilt to sustain a verdict of guilty. There was no error in the court so charging the jury; the court expressly stating, in the same connection, that such proof "might be a form of corroboration, but the jury in every case are the judges of what corroborations are sufficient."

(Syllabus by the Court.)

Error from superior court, Walker county; W. M. Henry, Judge.

Wilson Davis was convicted of burglary, and brings error. Affirmed.

Copeland & Jackson, for plaintiff in error.

Moses Wright, Sol. Gen., for the State.

LEWIS, J. Wilson Davis was indicted by the grand jury of Walker county for the offense of burglary, "for that, on the 24th day of April, 1897, in the county aforesaid, he did unlawfully, burglariously, and feloniously break and enter into the depot of the Chattanooga Southern Railroad Co., at Kensington, Ga., said depot being a place where valuable goods were stored and kept, with intent to commit a larceny therein, the said intent being then and there to take and carry away seven sacks of cotton-seed meal, of the value of ten dollars, with intent to steal the same." On the trial of the case there was proof introduced by the state that, when the depot was closed on a certain afternoon, there was a given quantity of cotton-seed meal therein, and that the next morning seven sacks of this meal were found missing. It further appeared that, while one of the windows was up in the depot, the blinds to the same were closed, and that the next morning the blinds were found open and the window down. The defendant confessed to entering the depot, and taking therefrom the seven sacks of cotton-seed meal, and carrying them to a certain place. He implicated in his confession another party as an accomplice, who, he stated, made the opening in the depot for him before he entered. Cotton-seed meal answering to the description of that stolen was found at the place where the defendant stated he had put the stolen goods. The defendant was found guilty, with recommendation that he be punished as for a misdemeanor, and, upon overruling his motion for a new trial, he excepted.

1. The first assignment in the motion for a new trial is that the court erred in overruling the motion of movant to rule out the evidence of the witness Smith relative to the date of receiving the goods alleged to have been taken from the depot at Kensington, the fact of receiving such goods, and the amount received. This motion was based up-on the ground that it appeared, from the evidence of said witness, that the alleged facts testified to were in writing. It appeared, from the testimony, that the only writings on the subject were waybills, giving the amount of the goods that had been shipped to this depot. But the witness did not undertake to testify to the contents of the waybills, or any other written instrument. He testified from his recollection, after having inspected and counted the sacks of cotton-seed meal, both before and after the alleged crime, as to what was stored in the depot, and what had been taken therefrom. The waybills alone, instead of being the highest proof of this fact, would not have been any proof at all. They could only serve as a memoranda to refresh the recollection of the witness as to what goods were actually in the depot; but it seemed the witness needed no such aid, and, manifestly, his testimony on the subject was admissible, and was evidence of as high a character as could have been procured.

2. Complaint is further made that the court erred in refusing to admit in evidence the act of the legislature, approved October 27, 1808, showing that the same line of railroad upon which the depot was located was incorporated as the "Chattanooga Southern Railway Company." The indictment charged the depot to belong to the "Chattanooga Southern Railroad Company." The object of this proof was, manifestly, to show that the depot was not the property of the company named in the indictment, but of another company. We think there was clearly no error in refusing to allow the proof offered. It was proven by the state that the depot belonged to the Chattanooga Southern Railroad Company, as charged in the indictment. Even if the proof had shown that the name of the corporation owning the depot was improperly stated, by its...