Foster v. State

237 S.E.2d 455, 142 Ga. App. 805, 1977 Ga. App. LEXIS 1381

Opinions

Bell, Chief Judge.

The defendant was indicted for possession of a tool for the commission of a crime, the indictment alleging he had in his possession a "tool commonly used in the commission of burglary and theft, to wit: 1 screwdriver. Said accused having possession of said tool with intent to make use of same in the commission of said crimes.” He waived trial by jury and was found guilty by the court and was sentenced. The appeal challenges the admissibility of certain evidence and the sufficiency of the evidence. Held:

1. Defendant was arrested in an automobile shortly after he was seen attempting to enter the van. A piece of bent coat hanger wire was in plain view in the back seat. The coat hanger wire was properly admitted in evidence as a circumstance connected with defendant’s arrest. State v. Luke, 232 Ga. 815 (209 SE2d 165).

2. Police officers hidden inside a private van observed the defendant attempting to enter the van by prying open a vent window with a screwdriver. The defendant was unsuccessful and was later apprehended by the police. This evidence was sufficient to authorize the trial judge to conclude that the defendant had possessed a screwdriver with the intent to commit a theft. However, there was no evidence showing that defendant had possessed the screwdriver with intent to commit a burglary as also alleged in the indictment. The state’s evidence dealt solely with the attempted entry into the vehicle, and there was no showing that the vehicle was designed for use as a dwelling. Therefore, there was no evidence which even suggested the crime of burglary. Massey v. State, 141 Ga. App. 557 (234 SE2d 144). As the evidence was sufficient to authorize the conviction for that part of the indictment alleging that the defendant had the screwdriver in his possession with an intent to commit theft, that part of the judgment of conviction is affirmed. The portion of the judgment of conviction for possession of a tool with intent to commit burglary must be reversed as not being authorized by the evidence. Direction is given to the trial court to vacate the sentence and to resentence the defendant for possession of the screwdriver with intent to commit theft. Obviously the erroneous part of the judgment of conviction pertaining to burglary may have affected the sentence.

Submitted January 31, 1977 Decided July 13, 1977 Sidney L. Moore, Jr., for appellant. Lewis R. Slaton, District Attorney, Joseph J. Drolet, Donald J. Stein, Assistant District Attorneys, for appellee.

Reversed in part and affirmed in part with direction.

Deen, P. J., Quillian, P. J., Webb, Marshall, Shulman and Banke, JJ., concur. McMurray and Smith, JJ., dissent.