Minor v. State, s. 48096

• Decision Date: 25 April 1973
• Docket Number: No. 2,48098,48097,Nos. 48096,s. 48096,2
• Citation: 129 Ga.App. 7,198 S.E.2d 383
• Parties: Joseph MINOR v. The STATE. Jackie MINOR v. The STATE. James COLLINS v. The STATE
• Court: Georgia Court of Appeals

Page 383

198 S.E.2d 383

129 Ga.App. 7

Joseph MINOR v. The STATE.

Jackie MINOR v. The STATE.

James COLLINS v. The STATE.

Nos. 48096, 48097, 48098.

Court of Appeals of Georgia, Division No. 2.

April 25, 1973.

Albert G. Ingram, Augusta, for appellants.

Richard Allen, Dist. Atty., J. Bacheller Flythe, Augusta, for appellee.

Syllabus Opinion by the Court

CLARK, Judge.

The three defendants, two being brothers and the third their step-brother, appeal individually from a conviction for burglary. They were tried jointly under a single indictment. The sole enumeration of error is that the verdict of guilty is contrary to law and the evidence.

Only one, Jackie Minor, of the accused testified. In doing so he assumed full guilt and sought to exonerate the other two defendants. His testimony was that the three defendants were driving home after failing to gain employment at the Georgia Power plant in Burke County. Upon seeing an unoccupied house he suddenly decided to burglarize it, so he instructed the driver of the car, James Collins, to stop in the driveway. There he directed the driver, Collins, to remain in the car and the third defendant, Joseph Minor, 'to stand right here by the car and watch.' (T. 36). His story was that he alone entered the house and removed certain personal property from the house and placed it in the car. In reply to counsel's query, 'Did either of these two defendants have any knowledge of what you were going to do?' he replied 'No, sir, I didn't tell them because I figured they were scared.' On cross examination he acknowledged making two trips into the house for removal of two guns, shells, a sander, twelve Stereo tapes, a tape player, and twelve cans of oil. (T. 48). He further testified he received no help from his co-defendants in taking the items as 'They must not have wanted any part of it.' (T. 40). They were apprehended while on their return trip.

During separate police interrogations, each defendant signed a confession. Jackie Minor's confession confirmed his testimony at the trial. Joseph Minor's confession stated he had participated including removal of the two guns. James Collins, driver of the car, stated in his confession that he remained in the car while it was parked in the driveway. His statement was corroborated by the other two confessions.

1. 'A person commits burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .' Code Ann. § 26-1601. The evidence showed not only did one of the defendants testify on examination that he instigated a burglary in which the other two participated, but the two who got out of the car were identified by a passerby as being at the house where the burglary occurred immediately before articles were found to be missing. Additionally, when defendants were arrested on their way home after the burglary, the stolen items were found in their possession. Thereafter, confession from all three admitted the burglary and the degree to which each participated.

'Proof of the corpus delicti and plenary confession are sufficient to sustain a conviction (Cits).' Smith v. State, 118 Ga.App. 464, 467, 164 S.E.2d 238, 240. 'Where a burglary has been committed and soon thereafter goods from the burglarized premises are found in the possession of one who is unable to account for their possession, it raises a presumption of his guilt, and a verdict of guilty is authorized. (Cit) . . .. (T)he evidence of the defendant's admission of his participation, together with all the other facts and circumstances proved, was sufficient under the above rules to authorize the conviction (cits).' Myerholtz v. State, 109 Ga.App. 352, 136 S.E.2d 165. See Mallory v. State, 56 Ga. 545, 546; Matthews v. State, 86 Ga. 804, 13 S.E. 16. The articles found in the possession of the defendants were indisputably identified by the owner as the stolen items. See Jones v. State, 106 Ga.App. 614, 127 S.E.2d 855. Positive identification was made of two of the three defendants at the scene of the burglary by a witness at the trial. See Matthews v. State, 86 Ga. 782(1), 13 S.E. 16.

2. The signed confessions of all three defendants were introduced into evidence after the judge made a preliminary determination outside the presence of the jury that the confessions were made voluntarily by hearing evidence on the issue from both sides. After such determination by the judge, 'The State may then offer the confession without further proof of its voluntary character, and, if the defense wishes to contest the issue it may offer evidence that the confession was...