Opinion
35746.
DECIDED JULY 12, 1955.
Certiorari. Before Judge Andrews. Fulton Superior Court. April 7, 1955.
Al Jennings, James R. Venable, for plaintiff in error.
Paul Webb, Solicitor-General, John I. Kelley, Solicitor, Frank S. French, C. O. Murphy, contra.
1. The evidence amply supports the verdict.
2. The name "The Atlantic Company" connotes a corporation, and it was unnecessary to prove the corporate existence.
3. Where the grounds of assignments of error and recitals of facts in a petition for certiorari are not affirmatively verified in the answer of the trial judge, such grounds cannot be considered by the Court of Appeals.
DECIDED JULY 12, 1955.
The defendant, George Nichol Raptis, along with Eugene Langley, was charged separately with the offense of attempting to commit a burglary of a storehouse of the Atlantic Company where valuable wares and merchandise were stored and kept. The defendant Raptis was tried and convicted as charged. He made application for the writ of certiorari to the Superior Court of Fulton County, which application was granted. The writ of certiorari issued and came on for hearing before a judge of the superior court. The writ was overruled and dismissed. The evidence showed substantially that between midnight and daybreak the defendant and Langley were together in a Mercury car, riding around. They were in an intoxicated condition. The defendant was driving the car. He was seen to drive the car to the storehouse in question and to drive it against the door of the storehouse. After doing this the defendant drove away from the building and in a short time returned and jammed the bumper of the car against a small door of the storehouse. A witness called a policeman. Then it was that the defendant again drove the car by the storehouse. The policeman, having arrived at the storehouse, pursued the car which the defendant was driving and in which Langley was riding. The defendant in his statement claimed that he was intoxicated to the extent that he did not know what happened. Langley's testimony was that while they went to the storehouse, as testified to by the witness, the accused had no intention of burglarizing the storehouse.
The State's evidence showed that the operator of the storehouse in question testified that, when he closed the store the evening before the attempted burglary, the doors were locked and were in good condition; that the next morning the small door (which had been bumped by the car driven by the defendant) was damaged and planks were broken in the door. There was other evidence on behalf of the State to the effect that the car which the defendant was driving at the time the officers overtook the car, appeared to be the same car which the defendant was driving at the time the door was damaged; that the tire treads were the same; and that there was paint on the bumper of the car which apparently matched the paint which had been rubbed off the door.
Another witness for the State testified: "I live at 1096 Ridge Avenue, which is next door to 1100 Ridge Ave. On the night of Dec. 24, 1953, I was at home, and saw something take place at the Atlantic Company, at 1100 Ridge Ave. Beginning around midnight and lasting until around 2:30 or 3:00, there was a car there which resembled the one shown in Exhibit A. The occupants of the car pulled in beside the E-Z store which is parallel with Ridge Ave., and has large doors on the left side of it and a small one on the right and they would go to the small door and shake it and prize at the lock and they did it several times in the 2-1/2 or 3 hours. I saw them get out and prize on the little door on the right side of the E-Z shop and shake it several times; I saw them get out and do that. I did not see the young men when they were arrested. That was the night of December 24th."
The bill of exceptions assigns error on the overruling and dismissing of the writ of certiorari on the statutory grounds and several special grounds. On the judgment overruling and dismissing the writ of certiorari the defendant assigns error here.
1. The evidence was sufficient to authorize the jury to find that the defendant, on at least two occasions, intentionally drove the car against the doors of the storehouse belonging to the Atlantic Co., wherein valuable wares and merchandise were stored and kept. Counsel for the defendant contends that the State failed to prove intent to commit the crime alleged. The Court of Appeals held in Sellers v. State, 81 Ga. App. 212 ( 58 S.E.2d 262), that where one is charged with an attempt at burglary and the evidence shows that the storehouse contained valuable goods stored, but where no other motive appeared, the intent to steal may be inferred.
2. Special ground 1 contends that the State failed to prove the existence of the corporation alleged in the accusation and, therefore, the State failed to prove ownership in such corporation. This ground is without merit because "The Atlantic Company" connotes a corporation and it was unnecessary to allege or prove the corporate existence. See in this connection Hornsby v. State, 49 Ga. App. 305 ( 175 S.E. 400) and King v. State, 83 Ga. App. 175 (b) ( 63 S.E.2d 292), wherein this court held the opposite to the contentions of the defendant. There is no merit in this contention.
3. Special ground 2 assigns error on the admission of certain evidence, as set out by the trial judge, in answering the writ of certiorari as set out in paragraphs 7, 8, and 9 of the writ. The trial judge, in his answer said: "Paragraphs 7, 8, and 9 set out assignments of error to which this respondent makes no response, but submits this case to this honorable court for its decision in the premises." The facts alleged in this ground, as set out in paragraphs 7, 8, and 9, and referred to by the trial judge as set out hereinabove, were really not approved or disapproved by the trial judge. Therefore, the material covered in paragraphs 7, 8, and 9 of the writ of certiorari are not before this court for review. In Beavers v. Cassells, 56 Ga. App. 146 (1) ( 192 S.E. 249), this court said: "The grounds of the assignments of error and recitals of fact in a petition for certiorari not affirmatively verified in the answer of the trial judge of the lower court can not be considered." It will be remembered that the car was properly identified, without benefit of the evidence as set out in paragraphs 7, 8, and 9 of the writ of certiorari. So far as we can determine, all of the evidence referred to in paragraphs 7, 8, 9 is set out in paragraph 3 of the writ of certiorari, which has the affirmative approval of the trial judge (and in addition thereto he attaches certain physical exhibits which are made a part of his answer to approving paragraph 3). In this regard, see also Robertson v. Fowler, 80 Ga. App. 248, 251 ( 55 S.E.2d 862), and Mons v. State, 84 Ga. App. 340 (1) (66 S.E.2d 159). The answer of the trial judge was not traversed. Under the pleadings and facts in this case, it is our opinion that without the affirmative approval of paragraphs 7, 8, and 9 of the writ of certiorari by the trial judge in his answer, this ground presents nothing for this court to pass upon.
The court did not err in overruling and dismissing the writ of certiorari for any of the reasons assigned.
Judgment affirmed. Townsend and Carlisle, JJ., concur.