Wheeless v. State
| Decision Date | 23 June 1975 |
| Docket Number | No. 3,No. 50654,50654,3 |
| Parties | W. W. WHEELESS v. The STATE |
| Court | Georgia Court of Appeals |
Watson, Brown, Foster & Keller, Larry A. Foster, Jonesboro, for appellant.
William H. Ison, Dist. Atty., J. W. Bradley, Asst. Dist. Atty., Jonesboro, for appellee.
The defendant appeals from his conviction and sentence for the offense of burglary.
1. Where the indictment charged that the defendant 'without authority and with intent to commit a theft therein, entered the building of Woodprint, Inc. d/b/a News/Daily, the owner thereof,' etc., it was not error to admit the testimony of the president of Wood Printing, Inc. that the building burglarized was owned by the said corporation, which also conducted the business of the News Daily therein, over objection that the highest and best evidence of ownership of the premises would be a deed to same or of possession, a contract or lease. See Hill v. State, 117 Ga.App. 721, 161 S.E.2d 917; Willis v. State, 116 Ga.App. 21, 156 S.E.2d 668. Nor was the state required to produce minutes, by laws, or resolutions of the corporation to prove the identity of the witness as the president of the corporation, as it is contended is required by South Ga. Trust Co. v. Crandall, 47 Ga.App. 328(1), 170 S.E. 333. Even if this matter was not collateral to the real issues (see Byrd v. State, 78 Ga.App. 824(4), 52 S.E.2d 330), the witness' sworn testimony as to his identity and office were prima facie proof of such fact so as to support his testimony of the defendant's lack of authority to enter the building.
2. The appellant complains of the admission in evidence of his statement made during his in-custody interrogation, and of his blood-stained clothing (there was evidence that ingress and egress by the burglar was by the breaking of glass), over his objection that he was not fully advised of his constitutional rights beforehand. The record shows that a 'Jackson-Denno' hearing was conducted, during which it appeared that, while there was some doubt that the defendant was apprised of all of his rights (the officer gave them from memory), nevertheless he had been advised of his right to an attorney generally (if not at that particular time) and that he did not have to say anything unless he was in the presence of an attorney. Furthermore, it appeared that the defendant and his father voluntarily obtained the physical evidence and turned it over to the police after being advised that it might be incriminating and that he might refuse, and that the defendant appeared to understand and voluntarily waive the above rights. Moreover, any alleged error with regard to the admission of the above evidence, was rendered moot by the testimony of the defendant and his father on the trial of the case with representation by counsel.
3. The trial judge did not err in admitting in evidence for the state an envelope containing scrapings of dried blood from the window of the burglarized building, where the policeman who gathered the evidence for transmittal to the state crime lab in the envelope stated that he wrote the defendant's name and 'for Crime Lab' thereon merely to designate for the crime lab's information the case with which it was connected, and not to indicate his opinion that it was the defendant's blood.
4. Where, after the rule of sequestration was invoked, prosecution witness, officer King, testified for rebuttal that the defendant's father (a witness) had talked to him (King) in the witness room, King was not cross-examined about any possible violation of the 'rule,' and the district attorney stated in his place that he had not discussed the testimony of any other witness that had already testified with any witness who had not yet testified, the error, if any, must be held harmless. See Silas v. State, 133 Ga.App. 560(2), 211 S.E.2d 609 and cits.
5. Although the original of the registration of the defendant's automobile is on file in the State Revenue Commissioner's office, the trial judge did not err, over the defendant's objection to secondary evidence, in admitting in evidence, for the purpose of proof that the automobile found near the scene of the crime was registered in the defendant's name, a copy of such registration certified by the county tax commissioner as being 'a true and correct copy of the records filed in the Clayton County Tag office' with his seal affixed thereto. Code §§ 38-601, 38-602, Code Ann. § 38-630(b). Furthermore, any error in admitting this evidence was rendered moot by the defendant's testimony admitting his ownership of the vehicle.
6 The failure to charge, without request, on the subject of alibi, was not reversible error where the defendant's evidence, including his own sworn testimony, not only failed to show the impossibility of his presence at the scene of the offense at the time of its commission, but also actually placed him on the premises of the burglarized building immediately following the commission of the offense. See Parrott v. State, 133 Ga.App. 931(3), 213 S.E.2d 77; Bagby v. State, 134 Ga.App. 263, 214 S.E.2d 11.
7. The appellant contends that the trial judge erred in failing to grant him a new trial on the ground that, subsequent to the return of the guilty verdict and sentencing and the dismissal of the court reporter, one of the jurors allegedly stated before the judge, counsel for both sides and the remainder of the jurors that the jurors, in examination of the defendant's clothing in evidence, had discovered a piece of glass in the defendant's shirt pocket, whereas two of the state's witnesses had found no glass therein in their searches.
'The judge has a discretion in regulating and controlling the business of the court, and the appellate court should never interfere with the exercise of this discretion, unless it is plainly apparent that wrong has resulted from its abuse.' Banister v. Hubbard, 82 Ga.App. 813, 816, 62 S.E.2d 761, 763 and cit.; Code § 24-104; Checker Cab Co. v. Fedor, ...
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