DePalma v. State, 25245

• Citation: 169 S.E.2d 801,225 Ga. 465
• Decision Date: 08 September 1969
• Docket Number: No. 25245,25245
• Parties: James DePALMA v. The STATE.
• Court: Supreme Court of Georgia

Page 801

169 S.E.2d 801

225 Ga. 465

James DePALMA v. The STATE.

No. 25245.

Supreme Court of Georgia.

Sept. 8, 1969.

Syllabus by the Court

1. The evidence was insufficient to support the verdict in that though it was wholly circumstantial in nature, it did not exclude every reasonable hypothesis other than the guilt of the accused.

2. The trial court erred in allowing the character of the defendant to be introduced into evidence without his first having done so.

3. There was no material variance between the indictment and the evidence adduced at the trial.

John McGuigan, Atlanta, for appellant.

Ben T. Smith, Dist. Atty., Marietta, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Marion O. Gordon, Asst. Atty. Gen., Larry H. Evans, Atlanta, for appellee.

ALMAND, Chief Justice.

On April 5, 1966, the Mayfield Trucking Company was robbed by two men. A .38-caliber Smith & Wesson revolver, a petty cash box, some cash, and some gasoline credit cards were taken.

Appellant was indicted for the offense in Cobb County. On October 20, 1967, he was found guilty and sentenced to a term of ten years. His motion for a new trial was overruled and he brings his appeal.

1. Enumerations of error 1, 2 and 3 will be considered together as they are based on the general ground that the evidence admitted at the trial was insufficient to support the verdict.

The entire case for the State rests on circumstantial evidence. 'To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.' Code sec. 38-109. "The term, 'hypothesis' as used in the Penal Code in the rule as to what is necessary to warrant a conviction on circumstantial evidence * * * refers to such reasonable inferences as are ordinarily drawn by ordinary men in the light of their experience in everyday life." Wrisper v. State, 193 Ga. 157, 17 S.E.2d 714. In light of the above stated principles, the question to be determined is whether or not evidence introduced by the State supports any reasonable inference other than the guilt of the accused.

Appellee maintains that the evidence shows that the defendant had possession of some of the stolen articles, and that since this possession was never satisfactorily explained, the verdict of guilty is supported by the evidence.

We cannot agree that the evidence established possession of the stolen articles in the defendant.

One of the items stolen was a .38-caliber Smith & Wesson revolver. The State introduced evidence which showed that defendant, and one C. E. Tyler were apprehended on May 29, 1966, in a Winn-Dixie store which they were attempting to burglarize. In a bag, found inside the store, was a revolver identified as the one stolen from the Mayfield Trucking Company. There was no testimony that the revolver in question was ever found on the person of the defendant, or that he was ever in possession of the bag in which it was found.

It seems to us equally reasonable to suppose that the revolver was in Tyler's possession as to suppose that it was in the possession of the defendant. Therefore, under the Wrisper rationale cited above, we cannot hold that the evidence supports a finding that the revolver was in the possession of the defendant.'

The remaining stolen articles allegedly found in defendant's possession consist of some gasoline credit cards. The cards themselves were not introduced into evidence, but they were identified as the cards stolen from the Mayfield Trucking Company.

The appellee urges that the evidence shows that defendant admitted having possession of the cards. The only testimony linking the defendant with the credit cards was given by Officer Davis of the Cobb County Sheriff's Department. In his testimony, he quoted the defendant as saying, "They (the credit cards) didn't come from my apartment. They came from a storage bin that is assigned to us in the basement of the apartment."

This testimony is not sufficient to prove possession under the Wrisper rationale. The key word in the testimony is 'us.' This indicates that the storage bin was assigned to at least one person other than the defendant. It seems a patently reasonable inference that the credit cards could as easily have belonged to the unidentified co-owner or owners of the bin as to the defendant. The testimony shows only that the defendant knew where the cards were. The fact that one may know where the gold reserve of the United States is located does not, unfortunately, reduce it to his possession.

The evidence legally admitted in support of this charge was wholly circumstantial, and did not exclude every other hypothesis save the guilt of the accused. Thus, the appellant is entitled to a new trial.

2. Appellant also maintains that the State placed his character into evidence without his first having done so.

There have been a multitude of decisions by this court concerning this problem. In Wilson v. State, 173 Ga. 275, 160 S.E. 319, the criterion to be applied in cases of this sort was outlined in a full bench decision. 'Where one is on trial charged with the commission of a crime, proof of a distinct and independent offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other. To this general rule there are some exceptions; as, when the extraneous crime * * * may bear upon the question of the identity of the accused or articles connected with the offense.'

The evidence thus complained of can be divided into two categories. The first deals with the apprehension of the defendant and another while they were burglarizing a Winn-Dixie supermarket on May 29, 1966. In terms of the Wilson decision, it is clear that the proof of the second crime in no way tends to establish the commission of the first. Therefore, this evidence to be admissible at all, must come under one of the exceptions to the general rule as set out in the Wilson opinion. Appellee urges that the evidence is admissible because a revolver, identified as the one stolen in the Mayfield robbery, was found at the scene of the...