Under the whole record of the case it is our opinion that the evidence is not sufficient to sustain the verdict of guilty.
The defendant was convicted of being a "Peeping Tom." He filed a motion for a new trial upon the general grounds only. It is to the denial of this motion that the case is before this court.
The evidence shows that one Miss Jan Land lives with her father and mother at 1103 Henry Avenue, Columbus, Muscogee County, Georgia; that Miss Land returned home at about 11 or 11:15 p.m. with her date, after attending a football game; that she passed through the lighted, living room and went on to the back bedroom; that her mother was in that bedroom at the time; that she went back into the living room and turned off the lights, and from there went back into the bedroom, thence into the bathroom where she took a bath and washed her hair; that at the time she went into the back bedroom to prepare to wash her hair the light in that room was turned off; that she knew nothing about the alleged Peeping Tom until the police were "back there" (meaning back of her residence). She testified that she was dressed properly when she was in the lighted living room.
Mrs. Geraldine Canada, a witness for the State, testified that the defendant started by Mr. Land's house, this being the house where the alleged incident took place; that the defendant watched Miss Land through the side living room window for a few minutes and that when she went on toward the back he went on around to the back of the house; that she and her husband went to a neighbor's house to get the neighbor up and to report the matter to him. The witness further testified that anyone who lived close enough could have seen the defendant and that the second house above Mr. Land's home had a "for sale" sign on it. Mr. Canada testified substantially to the same effect.
Mr. B. H. Cold, a police officer, testified that he was called about 11 or 11:30 p.m. to go to the house in question and that when he arrived Mr. Dodds and Mr. Canada were holding the defendant; that the defendant said he was looking at the house which he thought was vacant, with a view to renting the same; that the policeman placed the defendant under arrest, charging him with being a Peeping Tom. He further testified that the defendant made no effort to escape. The witnesses did not know whether there was any light thrown into the back of Mr. Land's house.
Mr. Dodds, a witness for the State, testified that the defendant made no effort to resist when he was accosted in Mr. Land's back yard and made no effort to run away.
Daniel Samon, a witness for the defendant, testified that he had known the defendant for approximately two years and that they were in the same military organization together; that the witness had been with the defendant on several occasions looking for apartments or houses, with the possibility that the defendant would rent or buy same; that the witness had observed "for sale" or "for rent" signs in the area where the defendant was found; that he and the defendant went to look for houses several times during the day and one time at night but never as late as 11:30 or 12 at night; that the defendant and his wife came to the hospital on September 11 (the night before the defendant was arrested) to see the new baby of the witness and his wife; that the witness had seen a house for rent on Henry Avenue.
Samuel Bridgeman, a witness for the defendant, testified that he had known the defendant for quite some time; that they shared a car ride together; that there were homes "for rent" in the area of Henry Avenue and that he had observed "for rent" or "for sale" signs in that area; that he and the defendant had talked about rental property in the vicinity of Henry Avenue a number of times.
Counsel for the State cite and rely on Davis v. State, 4 Ga. App. 274 (61 S. E. 132) to sustain the conviction. The headnote of that case states that where a defendant is caught in an apparently guilty situation an unreasonable explanation is worse than no explanation at all. The evidence in the instant case does not occur to us to show an unreasonable explanation. The defendant's statement that he was looking for a house was corroborated by other witnesses. Hence the case cited immediately hereinabove is not applicable. Code 26-2002 defines the term "Peeping Tom" as one who peeps through windows or doors or other like places, on or about the premises of another, for the purpose of spying upon or invading the privacy of the person spied upon. It is our opinion in the instant case that the intent to spy was not shown.
The evidence shows that the defendant was some distance away from the unlighted house when he was discovered, that there were no footprints near the bathroom window to indicate that the defendant had been in that area, that the defendant did not attempt flight upon discovery, all of which points to sustaining the theory of innocence in the case at bar. Moreover, the State's chief witness testified that anyone could have seen the defendant while he was near the home of the Lands on Henry Avenue and that it was general knowledge that the rents were cheap around Henry Avenue. There was sufficient testimony to show that there were "for sale" and "for rent" signs in that area.
The court erred in denying the motion for a new trial on the general grounds only.
Judgment reversed. Townsend and Carlisle, JJ., concur.