Thomas v. State

246 S.E.2d 514, 146 Ga. App. 530, 1978 Ga. App. LEXIS 2442

Opinion

Banke, Judge.

The appellant appeals his conviction for the burglary of an apartment building. Held:

1. The state’s motion to dismiss is denied. See Williams v. State, 144 Ga. App. 72 (1) (240 SE2d 591) (1977).

2. The custodian for the apartment building testified that he witnessed the appellant leaving the premises carrying a vacuum cleaner which he recognized as belonging to the apartments. The police were notified, and the appellant, still carrying the vacuum cleaner, was arrested coming out of a nearby pawn shop. The resident manager of the apartments testified that he had left his office to change his baby’s diapers and that when he returned the vacuum cleaner, normally kept in the closet for use by the tenants, was missing. He also stated that the office was considered closed for business when no one was there. The appellant was not a tenant of the apartment complex.

This evidence authorized the jury to find that the appellant had entered the manager’s office without authority and with the intention to commit a theft. See Code Ann. § 26-1601; Riley v. State, 130 Ga. App. 181 (202 SE2d 533) (1973); Mayfield v. State, 141 Ga. App. 483 (2) (233 SE2d 833) (1977).

3. It was not error to allow into evidence a photograph depicting the parking area where the appellant was first spotted by the custodian over the objection that more cars were parked there on the date of the offense than were shown in the photograph. "The admission or exclusion of photographs, even when there is admittedly some difference in the situation portrayed and that which existed, is a matter within the discretion of the trial judge and will not be controlled unless abused. [Cits.]” Grasham v. Southern R. Co., 111 Ga. App. 158, 161 (6) (141 SE2d 189) (1965). We find no abuse here.

Submitted June 5, 1978 Decided July 3, 1978. Nicholson & De Pascale, Ernest De Pascale, for appellant. Harry N. Gordon, District Attorney, B. Thomas Cook, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Deen, P. J., and Smith, J., concur.