
    16851.
    GILSTRAP v. THE STATE.
    A conviction of burglary was not authorized by the. evidence.
    Decided December 15, 1925.
    Indictment for burglary; from Floyd superior court—Judge Wright. September 5, 1925.
    From the evidence it appears that the building in which Army Barnes conducted a pressing club was broken and entered at night, and that several suits of clothes were taken from it. This place was entered from an alley near East First Street, between Fifth and Sixth Avenues, in the city of Eome. A policeman testified that on that night he got a call on East First Street, between Fifth and Sixth Avenues', and went there in an automobile with Mr. Stevens, and found the defendant in a five-passenger automobile, lying down in it, as if he were resting, and asked him what he was doing there, and he said he was waiting for a boy named Wood, who had gone down town; the witness told him that was no place to be lying in a car at twelve thirty, and that he had getter get away from there, and he went on down the street, the witness following him some distance, after which the witness turned around and went back to where he first saw the defendant, and parked his car, and, after he had been there about twenty minutes, a negro named Marshall came out of the alley with a suitcase, apparently going to step in the car, and, on being asked by the witness where he got the suitcase, threw it down and ran off; and that the suitcase contained several suits of clothes identified by Army Barnes as having been taken from his pressing club, the back door of which had been broken open. Stevens testified that previously on the same night, about eleven twenty,, he saw the defendant and Marshall in “the car” together at South Borne bridge, and that Marshall got out of the car and went up town, and the defendant drove off by himself. Marshall, who had been convicted of burglarizing the same place on the occasion referred to, testified that on that night the defendant came to his house in a car at nine thirty, and said that he (the defendant) was going to leave for South Carolina at twelve o’clock; that they were going together, and the defendant took him in the ear, and they took a ride, taking with them the wife of the witness and another woman; that later they left the women, and the defendant drove to East First Street and stopped at the alley leading to the pressing club of Army Barnes, and told the witness to go down there, and get his grip, but did not say what was in the grip; that he (the witness) found the grip at the rear of a garage two doors from the pressing club, and took it to East First Street and started to get in “the car;” that the defendant had gone and he saw Mr. Stevens there, and threw down the suitcase and ran; that the defendant had been with him all the time from nine thirty o’clock until he (the witness) started to get the grip, about eleven o’clock, and that during that time the defendant was not out of the ear except to get his lights fixed, and was not at the Army Barnes place that night, and did not say anything to him about going into that store; that there was no agreement between them for one of them to steal that stuff out of the store. Barnes testified that the suitcase in which the clothes were found was not his suitcase. The defendant, in his statement at the trial, said that he knew nothing about the Army Barnes pressing club and was never at it; that on the night mentioned he was getting ready to leave for South Carolina and “this negro” wanted to go with him,-and that when the officers came up to his car, where it was parked, he was waiting for a man named Wood, who had gone to bring two girls to the car for a joy ride.
    
      M. B. Bubanlcs, James Maddox, for plaintiff in error, cited 14 Ga. App. 578 (4).
    
      J. F. Kelly, solicitor-general, M. Neil Andrews, contra.
   Broyles, C. J.

The verdict was unauthorized by the evidence, and the refusal to grant a new trial was error.

Judgment reversed.

Luke and Bloodworth, JJ., concur.  