Yawn v. State, 36305

Decision Date25 September 1956
Docket NumberNo. 2,No. 36305,36305,2
PartiesJ. D. YAWN v. The STATE
CourtGeorgia Court of Appeals

Syllabus by the Court

1. Where a dozen or more articles of merchandise of various classifications are offered in evidence as physical exhibits after each has been identified as being identical with merchandise missing from a place of business, and 7 of the articles are positively identified by handwriting and code marks showing cost price and selling price, all of the articles having been located in the possession of the defendant, there is no error in admitting them in evidence as against the contention that they have not been sufficiently identified.

2. Contradictory statements may be proved against a defendant on the trial of a criminal case in order to disprove his statement to the jury. There was no error in allowing the statement of the defendant on a former trial of the same case, containing some matter contradictory to his statement on the present trial, to be introduced in evidence.

3. On an indictment for burglary, where the evidence as to one count tended to show larceny from the house, it was proper for the trial court to charge the jury as to this offense and the punishment therefor.

4. The verdict was authorized by the evidence and the trial court did not err in overruling the motion for a new trial.

J. D. Yawn was indicted in two counts in the Superior Court of Toombs County for burglary. The first trial resulted in a reversal of the conviction, see Yawn v. State, 93 Ga.App. 236, 91 S.E.2d 312, and on the second trial he was convicted of burglary as to Count 1 and larceny as to Count 2. His motion for new trial as amended was denied by the trial court, and error is assigned on this judgment.

Jackson & Graham, Vidalia, for plaintiff in error.

W. H. Lanier, Sol. Gen., Metter, for defendant in error.

TOWNSEND, Judge.

1. The first special ground of the motion for a new trial assigns error on the admission of the physical exhibits tendered by the State as having been articles of merchandise found in the possession of the defendant after having been missed from the drug store of Dr. Oliver. The items were objected to in bulk, with special objection to the admission in evidence of suitcases. As to these objects, witnesses working in the store described the approximate times when they had been missed over a period of about 4 months. The 6 suitcases were identified as being identical with suitcases that had disappeared, odd pieces purchased from sets of 3 matching pieces with the matching pieces accounted for, all of which were found in the defendant's possession and in one of which was a tag bearing the cost price of the drug store in code which was identified by an employee as being in her handwriting. This luggage was purchased by the store from a manufacturer for whom the proprietor had an exclusive agency in Vidalia. With the suitcases were various items of cosmetics which had also been missed from the store. One employee identified his mark on a bottle of Aqua Velva, and another identified her cost mark on a box which had contained imitation pearl, bottles of Palmolive shave cream, skin bracer and Colgate lather, and a box which had contained a Sunbeam razor. All of these articles were alleged to have been stolen in Count 2 of the indictment on which the jury returned a verdict of guilty of larceny.

It was stated in Steele v. State, 46 Ga.App. 674, 168 S.E. 908, as follows: 'While it is necessary for conviction in a larceny case, where the state relies upon recent possession of the stolen goods, that the articles found in the possession of the accused be identified as those alleged to have been stolen, such identity can be established by the testimony of the owner of the goods that the articles found in the possession of the accused, where they have no 'earmarks' to identify them, are of the same brand and character as the stolen goods, and that, from their brand, character, and appearance, he believes them to be the property stolen from him. This is especially true where, as in the instant case, many different articles of various kinds, brands and sizes were stolen, and articles similar in make, brand, character, and appearance to the stolen ones were found in the recent possession of the accused. See, in this connection, Jordan v. State, 119 Ga. 443(2), 444, 46 S.E. 679. In that case, as in...

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8 cases
  • State v. Ponthier, 10183
    • United States
    • Idaho Supreme Court
    • January 13, 1969
    ...other jurisdictions. State v. James, 194 Mo. 268, 92 S.W. 679 (1906); People v. State, 270 P.2d 380 (Okl.Cr.App.1954); Yawn v. State, 94 Ga.App. 400, 94 S.E.2d 769 (1956); People v. Weaver, 18 Ill.2d 108, 163 N.E.2d 483 (1960); Jordan v. State, 119 Ga. 443, 46 S.E. 679 (1904); People v. Fra......
  • Ducom v. State
    • United States
    • Georgia Court of Appeals
    • November 26, 2007
    ...To "deprive" means, without justification, to withhold property of another permanently or temporarily.); Yawn v. State, 94 Ga.App. 400, 403(3), 94 S.E.2d 769 (1956) (larceny may be established by circumstantial evidence); OCGA § 16-8-2. Contrary to DuCom's argument, the State was not requir......
  • Richardson v. State
    • United States
    • Georgia Court of Appeals
    • February 18, 1966
    ...38 Ga.App. 205, 143 S.E. 509; Watts v. State, 8 Ga.App. 205, 68 S.E. 863; Steele v. State, 46 Ga.App. 674, 168 S.E. 908; Yawn v. State, 94 Ga.App. 400, 94 S.E.2d 769; Dawson v. State, 99 Ga.App. 115, 107 S.E.2d 847. It was not error to admit a photograph of the items in evidence over the ob......
  • Craft v. State
    • United States
    • Georgia Court of Appeals
    • June 15, 1971
    ...in this respect. Lockhart v. State, 3 Ga.App. 480(3), 60 S.E. 215; Butts v. State, 26 Ga.App. 40(1), 105 S.E. 372; Yawn v. State, 94 Ga.App. 400(3), 94 S.E.2d 769. 5. There was testimony that the accused was seen in the company of another man by the name of Carter in the early hours of the ......
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