Buntin v. The State., 117 Ga. App. 813, 162 S.E.2d 234 (1968)

Status: SUBMITTED

Docket Number: 43342

Parts: HALL, Judge.

Linked as:

Summary

Judgment affirmed. Felton, C. J., Bell, P. J., Eberhardt, Pannell, Deen and Whitman, JJ., concur. Jordan, P. J., concurs specially. Quillian, J., dissents.

Summary

Judgment affirmed. Felton, C. J., Bell, P. J., Eberhardt, Pannell, Deen and Whitman, JJ., concur. Jordan, P. J., concurs specially. Quillian, J., dissents.

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W. B. Skipworth, Jr., Solicitor General, Frank K. Martin, for appellee.Adams & Greenholtz, H. T. Greenholtz, Jr., for appellant.

The defendant was convicted on an indictment in two counts each charging the defendant with burglary in breaking and entering a storehouse and place of business where valuable goods were contained.

The defendant contends that the conviction was contrary to the law and the evidence because there was no proof that either of the two buildings (involved in the two separate counts) contained valuable goods when the defendant broke and entered. There was evidence that one building contained a small safe in which there were & will and some stock certificates, and testimony that the other building contained a fan, venetian blinds, a telephone, a safe, crowbars, and screw drivers. There was no testimony that any of these articles were of any value.

1. Judge Arthur Gray Powell stated in Ayers v. State, 115 Ga. App. 387 (5), 392 (5) (154 SE2d 781).

JORDAN, Presiding Judge, concurring specially.

This court in Cannon v. State, 113 Ga. App. 701 (3) (149 SE2d 418), held that numerous items of personalty in a building as shown by a photograph thereof was sufficient to authorize a finding that such personalty had some value. In this case we need not rely upon a photograph since there was positive uncontradicted testimony that one of the buildings entered contained a safe, and that the other contained a safe, a set of venetian blinds, a telephone, a fan, crowbars, and screw drivers. Courts can take judicial notice of facts within universal common knowledge and experience. A mere modicum of common knowledge dictates the conclusion that the articles described above have some intrinsic value even though the exact value of the items is not shown.

The courts of this State have taken judicial notice that moonshine whisky is an alcoholic beverage manufactured contrary to law and has value; of the time when the sun rises and sets; that a cow is a female animal with cloven hoofs; that craps is a game played with dice; that crops mature in Georgia in late summer and fall; that in Georgia tobacco is usually sold at auction in a warehouse; that many hogs are black and white spotted; that turpentine is not yielded by a cypress tree; that money is a thing of value; that a "quarter" as indicative of value means twenty-five cents; that the value of a dollar greatly decreased between October 1919 and May 1920; that poker chips used in a card game are things of value; and many other similar matters of common knowledge. Citations are omitted, but see annotations under Code 38-112.

As Chief Judge Hill said in Sims v. State, 90 Ga. App. 322 (3) (82 SE2d 881); Coleman v. State, 89 Ga. App. 535 (1) (80 SE2d 78). In the above cited cases involving burglary and larceny the appellate courts of this state would not take judicial cognizance of the fact that a safe, a white hog, seed cotton or meat were things of value.

The evidence adduced upon the trial, as is related in the foregoing statement of facts, showed that one building contained a small safe and the oiler a safe, a set of venetian blinds, a telephone, a fan and some tools. It was also shown that one of the safes contained some papers, stock certificates and a will. No proof was submitted concerning the value of any of these articles, that is, that they were separately or collectively of any value. There being no evidence that either of the buildings contained valuable goods, one of the essential elements of the offense of burglary from places of business which were not storehouses was not proved.

The appellee cites the case of Cannon v. State, 113 Ga. App. 701, supra, as precedent for the position that where photographs of the interior of a building show various items of personalty are contained in the building the conclusion is authorized that the articles are of some value. The Cannon case is distinguishable from the case sub judice. In the present case the photographs were admissible only as showing the physical condition of the exterior of each building, because no witness testified that the pictures portrayed the contents of the building at the time the burglary was committed. It is further observed that while the photographs were identified by the witnesses only as showing the burglarized buildings, none are included in the record which was duly certified and transmitted to this court. However, one of the photographs in question which portrays the rear exterior of the building occupied by Columbus Body Works was attached to the appellee's brief. It does dimly show what appears to be an automobile or part of an automobile within the building, but there is no evidence as to when the picture was taken or that the automobile was in the building at the time of the burglary.

1968