Fleming v. State

108 Ga. App. 298 (1963)

132 S.E.2d 823

FLEMING v. THE STATE.

40168.

Court of Appeals of Georgia.

Decided September 10, 1963.

Andrew J. Ryan, Jr., Solicitor General, Sylvan A. Garfunkel, Robert E. Barker, Solicitor General pro tem., contra.

*300 FRANKUM, Judge.

1. Where the evidence adduced upon the trial of one charged with the offense of burglary showed that the building described in the indictment had been broken open and that immediately after the breaking and entering the defendant was apprehended by police officers (answering a silent burglar alarm) within a fenced enclosure adjacent to and forming a part of the premises whereon the building allegedly burglarized was located, and where, after being so apprehended, the defendant gave to the officers conflicting statements accounting for his presence within the enclosure and as to the location of the automobile in which he reached the vicinity of the burglarized building, and where some items of personal property found on the defendant's person and in the automobile referred to were such as could be used in burglarizing a building and in breaking open a safe, the conviction, though dependent upon circumstantial evidence and not demanded, was authorized by the evidence, and the general grounds of the motion for a new trial were, therefore, properly overruled. Jackson v. State, 54 Ga. App. 413 (187 SE 893); Sanders v. State, 66 Ga. App. 128 (17 SE2d 251); Little v. State, 88 Ga. App. 581 (77 SE2d 75); Gregory v. State, 80 Ga. 269 (7 SE 222).

2. The sole special ground of the motion for new trial assigns error because the trial judge "excluded" evidence as to the occupation and activities of the defendant earning a living. This ground shows, however, that the judge did not rule this evidence inadmissible, but merely informed counsel for the defendant that if he insisted on putting it in, he would permit *299 the State to introduce evidence of prior convictions on the theory that this evidence amounted to putting the defendant's character in evidence. Counsel for the defendant then chose not to put the evidence in, and under these circumstances, there is no ruling upon which this court can pass.

Judgment affirmed. Nichols, P. J., and Jordan, J., concur.