Mitchell v. State , 69 Ga. App. 771 ( 1943 )

The defendant contends in his motion as follows: "The record is silent as to whether the front door had ever been opened after the same was closed by the alleged victim when she retired for the night. The conclusion of the witness as to the manner accused entered the house is however in the record. The evidence in the case is that the screen door was propped open from the porch, but there is not one line of evidence that the front door which had been fastened, as above set out, had ever been open prior to the time the accused was discovered in the house, except the conclusion of the prosecutrix."

The following evidence was introduced without objection: "When I [the alleged victim] waked up I pushed him off on the side of the bed like this. He was sitting on the side of the bed. He had his feet on the floor and I had hold of his arms. When he came in he left the front door standing wide open and he went out the front door just like he came in. He left the screen door propped open. That is something I never do. When I hollered for my brother-in-law, Mr. McDaniel, when I grabbed the light he ran. I grabbed the flashlight out of his hand. When he ran out of the front door I was on the floor right behind him and ran out on the porch behind him." The record discloses no objection to any of the above quoted testimony, and conceding, for the sake of argument, that the alleged victim did not see the defendant when he entered the front door of her house, yet we nevertheless think that the jury were authorized to find that she chased him from the edge of her bed, through the front door onto the front porch, and saw him flee through the front door, which she saw and knew was standing open as they passed through and that she saw and knew that the screen door was not only open but was propped open; both of which doors she, herself, had closed when she went to bed a few hours before.

On the question whether the defendant "broke out of the house rather than that he broke in," we think that it would have been impossible for the alleged victim, who was engaged in business during the day in question, to have testified positively that at no time during the interval when she left home for her work and up until the time she returned to her home at eleven o'clock at night, that the doors had not been left open by some member of her family for some period long enough for the defendant to have entered through an open door. To require such direct and positive proof would be almost equivalent to saying that a burglary could not be proved, when committed in her house, unless she kept a constant watch over it or unless she made an exhaustive search of her house when she returned from work, in order to determine the presence of strangers who might be in the closets, under the bed, or otherwise hiding therein. Such a requirement would be wholly impracticable. Moreover, neither the defendant in his statement to the jury, nor did any of his witnesses in their testimony, make the statement that the defendant had gone into the house through an open door or window. Daniel v. State, 48 Ga. App. 789 (173 S.E. 485).

This and all other matters in the motion having been considered, it is

Overruled. Broyles, C. J., and Gardener, J., concur.