Moye v. State, 30200.

• Citation: 29 S.E.2d 791
• Decision Date: 03 March 1944
• Docket Number: No. 30200.,30200.
• Parties: MOYE . v. STATE.
• Court: United States Court of Appeals (Georgia)

29 S.E.2d 791

MOYE .

v.STATE.

No. 30200.

Court of Appeals of Georgia, Division No. 1.

March 3, 1944.

Rehearing Granted March 24, 1944.

Judgment Adhered to April 1, 1944.

Syllabus by the Court.

1. "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, § 38-109. In other words, to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with such reasonable inferences of guilt as are ordinarily drawn by ordinary men in the light of their experiences in everyday life, but shall exclude every other reasonable inference, so drawn, save that of the guilt of the accused. It is not incumbent on the State to show that it was barely possible that the burglary was not committed by the defendant, but if the State shows the jury to a moral and reasonable certainty that the accused committed the burglary, this is sufficient. Applying this rule to the evidence, the jury were authorized to find the defendant guilty of burglary.

2. When the allegations of an indictment charge the conviction of a prior felony for the purpose of inflicting the maximum penalty for the present felony, and when the fact of the former felony is made to appear by the introduction in evidence of the indictment, the verdict of guilty, and the sentence of the court, and this evidence is undisputed and unquestioned by the accused, it is not prejudicial error to instruct the jury to find that the fact of the prior conviction of the defendant had been proved and was to be considered by the jury in fixing the punishment for the second felonious offense, if the jury should find the defendant guilty of the present offense for which he is on trial, where the court also charged at great length that unless the jury find beyond a reasonable doubt that the accused committed the present offense, he should be acquitted.

3. The charge excepted to was in the form of a hypothetical statement, and did not express an opinion as to what had been proved.

4. Following the ruling in the case of Weeks v. State, 66 Ga.App. 553, 18 S.E.2d 503, we are constrained to hold that it was not reversible error to allow proof of previous transactions of other burglaries.

5. The judge did not err in failing to charge the law of larceny from the house, as no phase of the evidence authorized such a charge.

6. The indictment here alleged a conviction and a sentence of a former felony, for the purpose of invoking a maximum penalty upon conviction of the present felony of burglary. This made applicable the provision of the Code, § 27-2511, which fixes the punishment of the present felony. It necessarily follows that section 27-2501, which provides for a reduction of the punishment of burglary to that of a misdemeanor punishment, was inapplicable.

Error from Superior Court, Bibb County; A. M. Anderson, Judge.

Roy Moye was convicted of burglary, and he brings error.

Affirmed.

Thomas A. Jacobs, Jr., of Macon, for plaintiff in error.

Chas. H. Garrett, Sol. Gen, of Macon, for defendant in error.

MacINTYRE, Judge.

1. The defendant, Roy Moye, was indicted by the grand jury of Bibb County on February 4, 1943. The indictment charged the offense of burglary, and alleged in substance that on the 7th of January, 1943, he did break and enter the storehouse and place of business of Lester Grady, trading as "Grady's Thrift Mart, " with intent to commit a larceny, and that he did steal twenty cartons of cigarettes, fifteen cartons of smoking tobacco, and two cases of snuff. The indictment also alleged two previous convictions of the defendant; one on June 25, 1940, in which the defendant was convicted of burglary in Bibb superior court and sentenced to the penitentiary in two counts of an indictment in Bibb superior court. The second alleged conviction of burglary was under the second count of the same indictment on the same date in the same court, in connection with both of which convictions, the present indictment alleged that the defendant had been sentenced to the penitentiary. The defendant was convicted, his motion for a new trial was overruled, and he excepted.

Lester Grady, the person from whom the goods were alleged to have been stolen, testified in effect that he recalled closing his place of business on the night of January 7, 1943. He said that he arrived there the next morning at about seven thirty, and the back door was standing open, although he had carefully closed both the front door and the back door on the night before. He said that his stock of cigarettes, tobacco, and snuff had been disturbed, and all of the cigarettes that he had in stock had been taken away; that most of the tobacco was gone and a considerable part of the stock of snuff; that the back door was fastened by means of a bar, and he was surprised to learn, after his discovery of this burglary, that it was possible to lift this bar from the back door by using a thin steel or metal instrument, like a saw, and that by inserting such a thin instrument between the door facing and the door, the bar could be lifted. He testified that he had performed experiments and convinced himself that this could be done. He described his lost property substantially in the language of the indictment, as to the number of cartons of cigarettes, the number of packages of tobacco, and the number of cases and packages of snuff; and said that he had recovered some of the merchandise taken from his store through police officers of the city of Macon; that they brought this merchandise to him from a business place operated by W. W. Brown, located on the corner of Third and Oak Streets in the city of Macon; that he could positively identify some of it when he saw it, and did identify it; that he identified his tobacco, primarily because it was stored on one side of the store and one or two of the boxes had been eaten by mice; that he had observed the marks made by the mice on these packages, and from his own personal knowledge positively identified one of the packages returned as a package on which the mice had operated and as containing the pattern made by the mice on that package before the store was entered and the merchandise was stolen.

On cross-examination, Grady testified that he positively remembered locking up the store on the night of January 7, 1943; that Harry Sherwood, an employee of the witness, had a key to the front door, and that the front door had a double lock on it. He further testified that "it is possible for somebody that wanted to do so to go in the back of my store and hide and conceal himself in the store and me not discover it, but I know they did not on the night of January 7, because I went and double-checked on the doors and the storemyself. I made a definite search of the building before I closed that night. I looked in the toilet and all in the back of the building." On redirect examination he was questioned on the possibility of someone having been concealed in the store that night and having opened the back door of the store from the inside, and he answered as follows: "I personally closed the back door of my place of business the night before I found the back door open the next morning. I closed the entire store the night before I found the back door open the next morning. When I found the back door open the next morning, I remembered what I did the night before. I personally looked through the store the night before to see if anybody was concealed in the store anywhere. We had locked someone up in there about two and a half months before this happened. We convicted a negro on that. We had been careless up to that time about checking to see if anybody was concealed in the store, but after that time, I, personally, in locking up the store, looked through the store, and I am sure no one else was left in the store that night. There are possibly some two or three places in the store where a person could hide. We had a pretty good stock of goods on the night of January 7, and it was arranged so that there was no particular trouble to see if anyone was hidden or concealed in the store when we went to close up. I am sure that no one was hidden or concealed in the store the night of January 7, because I personally closed the store and personally checked to see if anyone was concealed in the store, and there was no one in there."

On further cross-examination, Grady testified as follows: "There was only one way for them to enter and that was by raising the bar on the back door. I don't know whether anybody had a key made for the door (meaning the front door) or not, but I know the doors were locked the next morning, and it is not likely they would take the time to go around and re-lock all of the doors. It is a double lock on the front door and it takes a key to lock it. It does not lock itself. It is, of course, possible but not probable that someone could have entered the store by means of a key and then gone out the door and relocked it with a key. I guess someone could have burglarized the store and then have gone around and relocked the store from the outside when he came out, if he had had a key. The back door was fastened by means of a bar on two flanges. I think an ordinary saw, like a carpenter uses, would have answered the purpose of opening the back door by means of raising the bar. I tried a saw on it and it worked. It was a saw similar to one used by a carpenter. Using a saw to raise the bar on the door would not necessarily make a mark on the door. There was a mark on the door the next morning after this burglary, but I don't know whether it was caused by opening the door that night. My testimony I have given as to how the man entered the store is the only solution that could be made out of it. * * * I am as certain that nobody hid themselves in the store the night before as I am that you are standing over...