Buntin v. State

162 S.E.2d 234, 117 Ga. App. 813, 1968 Ga. App. LEXIS 1245

• Court: Court of Appeals of Georgia
• Decided: May 9, 1968
• Docket: 43342
• Status: Published

Opinions

Hall, Judge.

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 a 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, 3 Ga. App. 305, 307-308 (59 SE 924): “The courts will not take judicial cognizance that any article is of value, unless the law itself so designates it. Johnson v. State, 109 Ga. 268 (34 SE 573); Wright v. State, 1 Ga. App. 158 (5), (57 SE 1050). However, value, just as any other matter of proof, may be shown circumstantially or inferentially, as well as directly or positively. Roberts v. State, 55 Ga. 220; Jenkins v. State, 50 Ga. 258; Irvin v. Turner, 47 Ga. 382; Carreker v. Walton, 47 Ga. 397; Allen v. State, R. M. Charlt. 520. . . The jury would have the right to infer that an engine and boiler, recently in actual use and about to be moved and put to work again, part of a mill outfit worth $500, was of some value. Likewise, the circumstance that the defendant hired teams and men to move the property tends to negative the idea that it was valueless. Tf a thing has value to the owner, though to no one else, to steal it is larceny, its value to the rest of the world being immaterial.’ 2 Bish. Cr. Proc. § 751; Allen v. State, R. M. Charlt. 518; Ransom’s case, 2 Leach, 1090. The interest which the constable had, in this case, in bringing the property to sale, so as to protect himself against rule for contempt, made each and every part of the property valuable to him. In the Johnson case, 109 Ga. 268 (34 SE 573) the court, in showing that judicial cognizance can not be taken of the fact that meat is a thing of value, gives the reason that some meat is not valuable, ‘as, for instance, decayed meat, or such as has not been properly prepared for food, or for any other reason is not useful.’ Where the circumstances shown in the case are such as to indicate that an article, which according to common knowledge is usually useful, is, in the particular instance, in fact valuable, the reason of the rule ends, and the jury is authorized to find that the article in question is a thing of value. The early holding in this State that in simple larceny value must be alleged and proved (Davis v. State, 40 Ga. 230) is based upon the fact that such was the requirement of the common law at the time of its adoption in this State. It was. never the precedent of the common law, however, to extend the rule to absurdity in requiring proof of value.” (Emphasis supplied). “Direct proof of value, however, is not essential. Value may be shown by inference.” Sudan v. State, 68 Ga. App. 752, 754 (23 SE2d 867); Matthews v. State, 26 Ga. App. 41 (2) (105 SE 383). “And ‘value’, as the word is used in prosecutions of this kind, does not necessarily mean money value or market value.” Gates v. State, 20 Ga. App. 171 (5) (92 SE 974); Mance v. State, 5 Ga. App. 229, 230 (62 SE 1053). Chief Judge Russell said in Edmondson v. State, 18 Ga. App. 233, 240 (89 SE 189), “I conclude, therefore, that anything, — that is to say, any material object except man,- — which has any intrinsic value, however small, can be the subject matter of larceny from the house. It is not necessary that the thing should have what is known as a ‘market value,’ in the sense that it would bring a price in the market. It is sufficient that it has any intrinsic value to the owner. For example, a photograph of a dead friend, or a letter from my child, may have absolutely no market value, but it has an intrinsic value to me; and if any one enters my house and steals these objects from me he is guilty of larceny from the house.” A safe is defined in Black’s Law Dictionary, p. 1574, to be “A metal receptacle for the preservation of valuables.”

Submitted January 10, 1968 Decided May 9, 1968 Rehearing denied May 27, 1968 Adams & Greenholtz, H. T. Greenholtz, Jr., for appellant. W. B. Skipworth, Jr., Solicitor General, Frank K. Martin, for appellee.

The evidence was sufficient to support the conviction.

2. Other enumerations of error concern charges to which no proper and timely objections were interposed, as required by Code Ann. § 70-207 (Ga. L. 1965, pp. 18, 31, as amended, Ga. L. 1966, pp. 493, 498). Hence, they will not be considered. Carnes v. State, 115 Ga. App. 387 (5), 392 (5) (154 SE2d 781). Judgment affirmed. Felton, C. J., Bell, P. J., Bberhardt, Pannell, Deen and Whitman, JJ., concur. Jordan, P. J., concurs specially. Quillian, J., dissents.