Opinion
41388.
SUBMITTED JULY 7, 1965.
DECIDED SEPTEMBER 8, 1965.
Larceny. Gwinnett Superior Court. Before Judge Pittard.
Hancock Wilbanks, W. P. Wilbanks, Jr., for plaintiff in error.
Reid Merritt, Solicitor General, contra.
1. Whether the prosecution is to be permitted to reopen its case to offer further evidence after both sides have closed is in the sound discretion of the court.
2. The charge given as to intent to steal was sufficient in the absence of a proper request for further elaboration.
3. "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.
SUBMITTED JULY 7, 1965 — DECIDED SEPTEMBER 8, 1965.
The accused was convicted of simple larceny of various tools used in building construction. Upon denial of his amended motion for new trial, he appealed.
The testimony was that on the evening in question the accused borrowed the prosecutor's truck for use in going to a hospital with his wife to visit with some of her family. The prosecutor testified that this truck was used in his business, that he always stored the tools in it and that while he could not say that every tool alleged in the indictment to be stolen was actually present on the truck that day, he did in fact see a large number of them on the back of the truck on the afternoon before the accused borrowed it. For this reason he had told his wife to let the accused borrow a second truck; not the one on which he had the tools. The accused in his unsworn statement asserted that the wife of the prosecutor did not tell him which truck he should take. The wife of the prosecutor was not called to testify by either party. The day following his borrowing of it the accused took the truck to Fred Ransome's and turned it over to a fellow employee, Victor Watson, who returned it to the prosecutor. When the prosecutor examined the truck, the tools were missing.
In making its case the State relied in part on the fact that the accused failed "to deny the prosecutor's testimony that he had told three different stories about how the tools came to be missing." The prosecutor testified that on one occasion the accused stated, "I went to sleep . . . right down there in the parking lot at the hospital at Buford . . . and a policeman came down and woke me up . . . and I went on up there and we come on home," while at a later time he said that he went to sleep near the lake and there the policeman came by and awakened him, after which he returned to the hospital for his wife and then went home. On a third occasion the accused told the prosecutor that before going home he "went over to Mr. Robert's, and went to borrow some money to get the gas to come home on." The State also relied on a statement made by the accused to Victor Watson when he had been denied a raise that "he ought to get some of [the employer's] tools."
In defense, the accused asserted that he took possession of the truck around dusk, did not look to see if anything was on it, and that he did not know in fact whether there had been tools on it or not.
Counsel for the accused urged that from the circumstantial evidence adduced at the trial several hypotheses other than that of the guilt of the accused could be concluded from the facts, viz: (a) there was at least a thirty-minute period before the accused borrowed the truck when it was left unattended at the prosecutor's home; (b) under any construction of the statements of the accused, the truck was easily accessible to any third party when it was parked at night while the accused went into the hospital with his wife, or while he was in the truck sleeping; and (c) that there was ample opportunity for some third party to steal the tools between the delivery of the truck to Victor Watson and the time when the prosecutor discovered that the tools were missing. The accused also asserted that when the prosecutor confronted him with the fact that the tools were missing, he, the accused, feeling responsible for their loss by his negligence in leaving the truck unattended, offered to replace them.
1. The accused in special ground 4 of his amended motion for new trial, contends that the court erred in "allowing the solicitor to reopen the evidence after both sides had closed, and produce additional testimony" as to value of the property. This was a matter of discretion on the part of the court, which does not appear to have been abused. Guthas v. State, 54 Ga. App. 217 (3) ( 187 S.E. 847); Smith v. State, 15 Ga. App. 713 ( 84 S.E. 159).
2. Special ground 5 of the amended motion "contends that the court erred in failing to fully charge the jury as to the law of intent to steal . . ." Included in the charge to the jury was the following: "Now I charge you, Gentlemen of the Jury, that a crime or misdemeanor shall consist in a violation of a public law, in the commission of which there shall be a union or joint operation of act and intention. . . Intention shall be manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused. . . Simple theft or larceny is the wrongful and fraudulent taking and carrying away, by any person of the personal goods of another with the intent to steal the same." No further charge as to intent to steal was required in the absence of a request. Hill v. State, 45 Ga. App. 571 ( 165 S.E. 482).
3. The trial court erred in overruling the defendant's motion for new trial on the general grounds as the State's case did not meet the test as set out in Code § 38-109. See Goss v. State, 82 Ga. App. 533, 534 ( 61 S.E.2d 570); Carr v. State, 72 Ga. App. 8, 11 ( 32 S.E.2d 914).
Judgment reversed. Nichols, P. J., and Pannell, J., concur.