Opinion
41995.
ARGUED MAY 3, 1966.
DECIDED MAY 13, 1966.
Burglary. Fulton Superior Court. Before Judge Boykin, Emeritus.
Walter M. Henritze, Jr., Henritze, Baker Bailey, for appellant.
Lewis R. Slaton, Solicitor General, George K. McPherson, Jr., J. Walter LeCraw, Amber W. Anderson, for appellee.
1. It was error to introduce certified copies of prior convictions having no probative value as to the offense for which the defendant was on trial.
2. The evidence being sufficient to show that the criminal enterprise had not terminated, it was not error to show statements made by one of the conspirators tending to implicate others in the act.
ARGUED MAY 3, 1966 — DECIDED MAY 13, 1966.
Two detectives with the Atlanta Police Force, having received information that the U.S. Mosaic Tile Co., Inc. was to be burglarized that night, concealed themselves within the building at some time after 7:15 p. m. on January 15, 1965. At between 8:15 and 8:45 they heard glass break, men talking, and other noises. One of the men who entered, Cannon, in using a flashlight detected one of the policemen, who called out that he was arresting him. Cannon called to his confederate that there was someone in the building and attempted to flee, whereupon the officer shot and wounded him, and he was immediately apprehended. Within moments after the shot the officers heard a car engine start outside and the automobile take off at high speed. Cannon, questioned as to how he got there, said that Roy Mauldin brought him, which information was relayed by the officers in the building to others down the street by means of a walkie-talkie. At 8:45 p. m. Detective Addison heard via police radio that there was a lookout for Roy Mauldin's 1965 Pontiac and at 8:47 p. m. he spotted the automobile some 15 or 20 blocks from the scene of the burglary, driven by Mauldin and containing the defendant and another man. The officers gave chase, and the men were apprehended after a three-mile chase at speeds of up to 90 miles per hour, when the fleeing car collided with still another police car. In the course of the flight the officers observed what appeared to be a large croker sack flung from the right side of the car; they alerted other officers. Anglin, one of the occupants of the car, was taken to the police station by an officer who met Detective Peacock en route and told him to look for a croker sack at the Ellis Street entrance to the expressway; Peacock found such a sack, filled with tools, and returned it to his informant at 9:10 p. m. He also retrieved and turned over a large paper sack containing a torch and goggles. Both were on the right-hand side of the road, the croker sack about 150 feet beyond the paper bag and a pair of gloves 300 to 400 feet beyond the latter. The officers could not say which of the occupants had thrown out the sack which they saw, or whether it came from the front or back seat. Anglin was sitting in the right front seat and Kitchens in the back seat. On the trial of the latter for possessing burglary tools he made a statement to the jury in which he denied knowledge of any crime and stated: "I resided at the apartment building that Roy Mauldin manages and his mother leases. This is my reason for being in the automobile with this party. I reside there and I think I had a perfect right to be with him. He was my landlord. He had been drinking heavy that day. He and Ralph Anglin was sitting in the car. He said come on and let's take him home." He appeals from his conviction in this case.
1. Certified copies of two indictments for burglary against the defendant were introduced in evidence over objection. One, with sentence thereon, was in the year 1954. The record is confused as to whether the other crime was committed in 1954 or 1964, and as to whether or not sentence was imposed. In either event, the indictments referred to entirely independent transactions and violate the rule of Bacon v. State, 209 Ga. 261 ( 71 S.E.2d 615) that "evidence which in any manner shows or tends to show that the accused has committed another crime wholly distinct, independent, and separate from that for which he is on trial, even though it be a crime of the same sort, is irrelevant and inadmissible, unless there be shown some logical connection between the two from which it can be said that proof of the one tends to establish the other." The fact that other burglary convictions were introduced without objection against Cannon, Mauldin and Anglin, with dates scattered between 1936 and 1962, does not help the situation, since the most that can be said of these convictions is that they show a criminal bent of mind on the part of the alleged accomplices. They in no way tend to prove any conspiracy to commit the crime in question. Where, as in Murphy v. State, 64 Ga. App. 690 (2) ( 13 S.E.2d 870), prior felony convictions are intended to be proved under Code § 27-2511 for the purpose of obtaining a maximum sentence, the previous convictions must be alleged in the indictment as well as proved on the trial of the case. Tribble v. State, 168 Ga. 699 ( 148 S.E. 593).
The decision in Shelly v. State, 107 Ga. App. 736 (3) ( 131 S.E.2d 135) does not mean that any prior burglary conviction can be introduced to show that the intent of the defendant in possessing the tools was felonious. Where a particular group of tools has been used in a particular way in previous burglaries related in point of time, the evidence may be admissible to show modus operandi, or it may be shown that the tools in question have in fact been used by the defendant in the commission of the crime for the purpose of showing the intent accompanying the possession. The evidence introduced in the Shelly case was that earlier the same night in which he was apprehended the defendant used the tools in question to burglarize a store in another county, the proof being in part that articles stolen from the store were found in his possession and that a missing piece of a broken screwdriver found among the tools was located at the scene of the crime. Such evidence meets the criterion that, to be admissible, proof of the extraneous crime must tend to establish commission of the one in question. Indubitably, the admission of the indictment and convictions to which objection was made constitutes reversible error.
2. The evidence construed in its light most favorable to the verdict authorizes a finding that two persons entered the building; that one shouted a warning to the other and was then shot and captured; that within a length of time that was short but sufficient for the other man to reach an automobile waiting in front of the building such a car was heard to leave at high speed, that the burglar who was apprehended identified Mauldin as the driver of the car which brought them to the building; that at a short distance away and within a very few minutes Mauldin was located driving an automobile with the defendant and another man in it; that a croker sack containing burglar tools was thrown from this car and that the car and passengers were apprehended shortly thereafter. In view of all these circumstances the jury was authorized to conclude that Kitchens was in the car when the burglars went to the building for the purpose of burglarizing it rather than to accept his explanation and conclude that he had entered the car for some innocent reason after it left the building and before it was first identified by the police. The occupants of the car possessed burglary tools which were jettisoned in the course of flight. The purpose of the possession was amply demonstrated by the fact that two men broke into and entered the building where the police were waiting for them. These facts are sufficient prima facie to establish the conspiracy to burglarize the building, and to possess tools for that purpose. Weeks v. State, 66 Ga. App. 553 ( 18 S.E.2d 503). Declarations of a co-conspirator during the pendency of the conspiracy are admissible in evidence, pending both the act itself and its subsequent concealment. Grace v. State, 49 Ga. App. 306 (3) ( 175 S.E. 384). Throwing the tools from the car was an act of one or more of the co-conspirators in an effort to conceal the crime, and the conspiracy was still in existence for this purpose at least when Cannon made his statement to the police officers that Mauldin had brought him in his car. His statement to this effect was properly admitted, and there was sufficient evidence to support the verdict.
The case is reversed for the reason stated in the first division of this opinion.
Judgment reversed. Nichols, P. J., and Hall, J., concur.