Miller v. State , 80 Ga. App. 281 ( 1949 )

The motion for new trial contained the general grounds only. The evidence authorized the verdict finding the defendant guilty of larceny from the person.

DECIDED OCTOBER 28, 1949. Luther Miller was indicted, tried, and convicted of larceny from the person. His motion for a new trial, based solely on the general grounds, was overruled and he excepted. The defendant's only contention is that the conviction was based entirely upon circumstantial evidence and that the evidence was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. Concerning the loss of his wallet the prosecutor, Obie Norris, testified in part: "I stopped to get something to eat at Guy Cohen's. He run a restaurant out there. Luther Miller [the defendant] was standing kinder to the left of the door when I entered the place. Mr. James Worley was sitting next to the heater, four fellows playing dominoes back there. One counter there. Men playing dominoes. I saw Luther Miller in there. I did talk to Luther Miller. I eat a hamburger and two barbecues. I opened the billfold in the pocketbook and took out a one dollar bill and gave it to Guy Cohen and he gave me 35 cents. Luther Miller was standing to the left of me. He was talking about me and him never had any trouble. He had a knife in his hand and layed [sic] his arm up on my right shoulder while I was eating the hamburger. I had done put the money back in my pocket. He stood there and talked a little bit and put his arm up there. I pushed his arm down. This other boy come up behind me there. I had a sandwich. I had two hamburgers. I had a pocketbook about six or eight inches long. It had a strap, fastened to my belt. One of these that fastens to your belt, strap around it and you put it in your pocket. It was in my left hip pocket. I pulled it out of my pocket. I taken it out. I had $500 just got out of the bank, and I had two hundred and some more. I went down through these bills and took out a one dollar bill in my hand and put it back in my pocket. I was eating a hamburger when he come up. He was standing to my left when I took the pocketbook out to pay for the hamburger. . . I had in the pocketbook approximately $675. . . I paid for the sandwiches and Pete Prather. Carl Ray, Johnny McGehee and Red Smith were playing dominoes. Pete asked me to come over there and play with him, he said he would like to beat me. I went over and played one game. Luther Miller was still in the store. I layed [sic] down the dominoes and told Pete I had to go. I started out the door and Pete Prather comes out with me. I went around back of the building to where supposed to be a bath room [a latrine], wasn't any there. That place was not enclosed, come out the door and come around to the left of the building, back side. . . Luther Miller come behind me and Carl Ray behind him. James Worley and Johnny McGehee were out there. Luther Miller was right behind me. He was right up against me. I didn't go inside the place. I went next to the stairway. Peter Prather standing behind me, Worley standing next to him, Carl Ray standing back and Johnny McGehee went inside the place. . . Luther Miller, at the time, come right by the side of me. I was kinder like this and he was standing like that (indicating). That was the side my pocketbook was located on. They drunk the whisky and went back around to the front, started around me and Pete Prather stopped and talked about a minute. Miller walked up in front. James Worley walked out in front. They had a car standing out there and says to Pete, ``You bring Johnny on, we are going.' They went to the car and Carl Ray, Worley and Luther Miller got in the car and went up the road. I started back inside . . and the pocketbook was missing and the strap was cut. This was the strap to my pocketbook (indicating). This was fastened to my pocketbook. It was hanging on to my belt right there (indicating). I told Cohen, ``Somebody got my pocketbook, some of them got it in there, lets search them in there. I started to the door and I seed these boys coming back, driving in there. I imagine they were gone about five minutes. During that time I had missed my pocketbook. I went to the car and told them someone of them had my pocketbook. I talked to Luther Miller. I asked him about it. Met him outside. I told him if he would give me back my pocketbook, that was all the money I had, I would give him $100. He got mad. He said why did I put it on him. I told him he was the only one that could have got it. I goes back in the house and told Guy Cohen to let's search everybody in the house. He said the best thing to do to call up the State Patrol or the sheriff and called them up. Before the State Patrol come, I imagine about fifteen minutes. Mr. Scarborough and Mr. Bailey came. Scarborough and Bailey, the State Patrol came. They come in and questioned some, questioned me, asked me about it. They taken Miller's knife and Carl Ray's knife and James Worley's knife. They asked for them. I have seen this knife before (indicating). I seed it in I seed it in Carl Ray's hand. I seen the one he taken out of his hand. In Miller's hand I seen this one (indicating) in Miller's hand. That is the knife (indicating) Miller had when he put his arm around me. I am positive about that. . . I tell the jury that Miller took my pocketbook. He was the only one in the room that could have got my pocketbook. I didn't see him take it. I don't think Pete Prather had a chance to get my pocketbook. He was outside with me at this rest room. James Worley was out there with me. Carl Ray was out there with me. James Worley was in hand-reach of me while I was out there. I will say within ten feet of me was James Worley, Pete Prather, Carl Ray and McGehee [sic] out there. It was in the afternoon. There was one man, I said he is the only one had a chance to get my pocketbook. These men wasn't as close to me as him and Worley. I played one game of dominoes. Pete Prather, Carl Ray. and Johnny Fannin were sitting at the table with me. Johnny MeGehee was with me. Four of us sitting there. Mr. Duncan was on my right side keeping the score. Miller called him outside and they went outside. Luther Miller and Duncan went outside. These men were sitting at a small table with me playing dominoes. . . The right side that was a man sitting there and Miller called him out. That was Duncan. Red Smith was playing to start with. He walked by the side on my right. He got mad and quit, and walked by on my right side. I was standing kinder on this side of him when he came by. He did not put his hand on me. He said he was going to get some grain and feed the chickens. Luther Miller was close enough to put his hand on me. I pushed it down. I don't know whether he cut my pocketbook off then or not. If I had noticed it I would have known it." W. B. Scarborough, a county policeman, testified in part: "I took off Luther Miller a knife. . . I have seen this knife before (indicating). It is the one I took out of Miller's pocket. . . I sealed it up in the same condition that it was when I took it off of Luther Miller. . . I don't know whether Red Smith ever had possession of that knife. . . All I know is I took that knife off of Luther when I arrested him." Dr. Herman D. Jones, Director of the Fulton County Crime Laboratory, testified in part: "I did make a scientific investigation of this knife (indicating) blade. I examined the blade of this particular knife with a microscope. . . [and by reason of various scientific tests] I conclude that this black-handled knife cut that piece of leather [the prosecutor's belt-pocketbook strap] on a down stroke." It is obvious from the record that the jury could tell which knife was taken from the defendant and which knife Dr. Jones testified cut the strap of the prosecutor's pocketbook. Manuel Janey, sworn for the defendant, testified: "I was working at Guy Cohen's on the Sunday when Ovie [sic] Norris was supposed to have been relieved of his money. My duties at the time was to help run the store. I don't remember exactly where Ovie was when he was eating a barbecue sandwich and hamburger. He went on the inside behind the counter and ordered a barbecue from Guy Cohen and he went in the kitchen. I didn't notice whether he was leaning on the counter or not. I was on the job out in the yard waiting on people. I come on up behind him. I don't remember if anybody passed by the side of him while he was leaning over the counter and put their hands on him or not. Red Smith come back out. Red Smith was playing dominoes. He went in the kitchen where Guy Cohen was. Red Smith come back out. Ovie Norris was present there. Luther Miller was in there by me. I walked in and set a coca-cola bottle down by Ovie and Mr. Miller and I stayed there a few minutes. Red Smith got up from the domino table and said — Red walked up to Ovie Norris while he was there. . . Red borrowed Luther's knife to open chicken feed, he said. I did see Red Smith borrow his knife in that place. That was when Red went out in the kitchen with Ovie Norris. Guy got close enough to touch Ovie at the time he and Luther were talking. I don't know that he was close enough to cut a strap or not." Carl Ray testified for the defendant: "Luther Miller did not have any more access to his [the prosecutor's] strap than we four. I think I was as close to him as Luther. I was in hand reach of him." Pete Prather testified in part: "At no time while I was back there [behind the restaurant] did Luther get out of my observation. I don't know I wasn't watching him. Ovie Norris did not get out of my sight any time I was back there. . . Luther Miller did not get closer to him than either of us, I don't think." The defendant made the following statement: "Gentlemen, they was all out at Guy Cohen's on the Franklin Road. We were all out there drinking. Ovie Norris come out there just like the witnesses said, got out of his truck and come in the place. I was at the counter when he come in the door. I was the first person he spoke to. He brought up the subject about the fighting we had down here in the flat. They jumped on me and there was a trial and I was turned loose in self-defense. He brought that up, said he knew they were going to turn me loose, because he knew I didn't never start any trouble with anybody in my life. He turned around and walked behind the counter and bought some sandwiches. I didn't hear what he ordered. He come out from behind the counter and he come up to the counter to the alley and stood there. He was eating. I didn't pay any attention to him. He started to playing dominoes. Red Smith had been playing and they got up a little argument. While they was back in the back he told Guy Cohen he could charge it. Guy told him, ``I don't do business like that.' Ovie paid him, I don't know how much. I didn't pay no attention. I walked over there to the heater. Me, Mr. Duncan and James was talking. Red Smith come up, he said he was going to feed the chickens. He says, ``Let me have your knife, I want to open up some chicken feed.' I handed him my knife. He went behind the counter. While he was back there I was talking to Mr. Duncan and Manuel, this boy that clerks at this place. Red Smith come back and handed me my knife. This boy was talking to me, and Mr. Duncan went to the front of the building. Pete said something about a drink. I never had my hands on Ovie Norris. While I was out there I was talking to him. I admit that. Ovie Norris ain't got money money, never had enough for me to steal from him. I ain't never took anything for nothing. I drink. I know all that. He called me a damn kid. He said he would pay a lawyer to convict me. I don't believe Ovie Norris lost a pocketbook over there. I don't think he did. I did not cut the strap and I didn't get his pocketbook. That is all I have to say."

The evidence for the defendant tended to support in part his statement. The evidence showed that it was the defendant's knife that cut the strap to which the prosecutor's pocketbook was attached, that in the store building in question, after the prosecutor in the presence of the defendant had displayed $500 or $600 in his pocketbook when he opened it up and went through the bills and took out a one dollar bill to pay for a hamburger, the defendant was talking to him, that he stood there and talked "a little bit," that he had his knife in his hand and laid his arm on the right shoulder of the prosecutor while the prosecutor was eating the hamburger and that the prosecutor pushed the defendant's arm down. The prosecutor paid for the sandwiches, and Pete Prather, Carl Ray, Johnnie McGehee and Red Smith were playing dominoes. Pete asked the prosecutor to come over there and play with him. "He would like to beat him." The prosecutor went over there and played one game. The defendant was still in the store, but not in the domino game. The prosecutor laid down the dominoes and told Pete he had to go and started out the store to go to the latrine. Pete went with the prosecutor out of the store, and the defendant was not then in the domino game, but nevertheless immediately followed behind the prosecutor. Carl Ray followed behind the defendant. The defendant was right up against the prosecutor. James Worley and Johnnie McGehee were in the latrine. Red Smith, who was in the domino game, did not follow the prosecutor to the latrine. Pete Prather had some whisky and was going to take a drink and asked the prosecutor if he wanted one. The prosecutor told him "No." The defendant at that time came right up to the side of the prosecutor, the side his pocketbook was located on. They, not the prosecutor, drank whisky. Then James Worley walked out in front. They had a car standing out there, and Pete Prather stopped and talked about a minute. James Worley said to Pete Prather "You bring Johnnie on. We are going." Carl Ray, Worley and Luther Miller, the defendant, got in the car and went up the road returning in five or ten minutes. When the prosecutor started back inside the store he saw his pocketbook strap hanging down. He said "Somebody got my pocketbook." The strap was cut and the pocketbook was missing. The prosecutor then said to the proprietor of the business "Some of them in there got it. Let's search them." However, they thought it best to notify the officers. The officers came and searched all of the suspects.

While there was evidence that other persons at various times between the time the prosecutor opened his pocketbook which was attached to a strap, paid for the hamburger, and returned the pocketbook to his pocket and the time he was returning from the latrine and noticed that his pocketbook strap was hanging down and the pocketbook had been stolen were in proximity to the prosecutor, yet the defendant's knife was the one that cut the strap that enabled the pocketbook to be removed. The defendant seems to have been the one always closest to the prosecutor as the prosecutor was leaving the building to go to the latrine and while the prosecutor and the others were actually in the latrine. Indeed the prosecutor testified that while they were in the latrine the defendant was right up against him and immediately after they left the latrine the defendant and two of the others entered a car and went up the road but returned in five or ten minutes. It might have occurred to them that their leaving under the circumstances would be suspicious, but that if they were to depart and conceal the money and pocketbook and return quickly, although there would be a search of those suspected, the absence of the money on their person would tend to divert suspicion from any of them.

The evidence of the defendant's witnesses tended to support in part his statement to the jury. Even if the other persons above referred to were in various degrees of proximity to the prosecutor on the occasion in question, the evidence shows that the defendant had a greater opportunity to cut the strap and steal the pocketbook. Furthermore, the evidence shows that it was the defendant's knife that did the cutting of the strap which was attached to the pocketbook. The fact that one of the defendant's witnesses testified merely that between the time of the purchase of the hamburger and before the time the prosecutor and the others above referred to left to go to the latrine, Red Smith, for the purpose of opening some chicken feed, had borrowed the knife of the defendant, and had gone into the kitchen where the prosecutor happened to be and returned the knife before the prosecutor left to go to the latrine would not change the situation, for the evidence was sufficient to authorize and to satisfy the jury beyond a reasonable doubt that the strap was cut while the prosecutor was going to or at the latrine and the defendant was guilty. The mere possibility that someone might have been in proximity to the prosecutor does not overcome the evidence which satisfied the jury of the guilt of the accused beyond a reasonable doubt. Hicks v. State, 66 Ga. App. 577,582 (18 S.E.2d 637). Moreover, the statement of the defendant to the jury with reference to the loan of his knife to Red Smith still would not change the situation. However, it is the rule that in making up their verdict it is the prerogative of the jury to believe only certain parts of the defendant's statement and to combine those parts with only certain parts of the evidence which they believe. Gray v. State, 77 Ga. App. 747, 751 (49 S.E.2d, 829). The jury accepted the theory of the State and found the defendant guilty of larceny from the person. Although the evidence was circumstantial, we think that it warranted the verdict.

Judgment affirmed. Gardner and Townsend, JJ., concur.