115 Ga. App. 338 | Ga. Ct. App. | 1967
As defined by the Code, specific intent is an essential element of a “Peeping Tom” misdemeanor, in that it must appear that the accused was on or about the premises of another for the purpose, i.e., intention, of spying upon or invading the privacy of another, or of doing acts which tend .to invade the privacy of another. Code §§ 26-2001, 26-2002. The State offered testimony about the 1964 offense for the sole purpose of showing the intent with which the accused acted, or, as later stated, “to show the intent with which the accused acted on the night of this occurrence, the past plans of the accused, and to show specifically the motive, the scheme, and to disclose the intent with which the accused acted.” The record of conviction, based on a’ plea of guilty, was offered for the same purpose. The evidence of the previous offense is unrelated to the alleged present offense except that it occurred in the same general vicinity under somewhat similar circumstances near the home of the accused. At the time the evidence was offered, the State' had already established the accused’s presence on the premises of the prosecutor of the present offense, although the accused later established an alibi by his testimony, and that of his wife, that he was at home in bed. The trial court in charging the jury limited consideration of the evidence of the previous offense except “so far as it may shed light upon the purpose of defendant’s presence on the premises of the prosecutor” if the jury determined as a fact his presence at the scene of the offense.
We are thus faced with the issue of whether evidence of the commission of the same offense some two years previously may be considered by the jury in determining the specific intent of the accused in connection with the present offense, in the event the jury chose to believe that' the accused was the person seen peeping through a window at the Carroll home. This
We conclude that the intent of the accused on the occasion of the offense some two years previously, as shown by the testimony of a witness who identified the accused as the person present on her premises, and as shown by his plea of guilty to the offense, was not admissible as evidence of the specific
Although the State contended at the trial that the offense is in the same category as a sex offense, and that the act is motivated by a sex drive, and the evidence for the State does show that the scantily-dressed daughter of the accuser saw the accused peeping through a window into a room where she was present, with her father and mother, the accusation alleges that the accused was spying upon and invading the privacy of the father, and the offense as defined by the Code, supra, does not confine itself to an offense motivated by a sex drive. We do not consider the offense as charged in the present case as a sex offense, but even if it were it would not require a result in the present case different from that reached herein, under the rule as stated in the Bacon case, supra. See in this connection McMichen v. State, 62 Ga. App. 50, 53 (7 SE2d 749), decided before the Bacon case, and Spinks v. State, 92 Ga. App. 878 (90 SE2d 590).
In view of the foregoing which controls further disposition of the case we regard the issue raised by the third enumerated error as moot and as presenting a situation unlikely to occur in the event of another trial, eliminating the necessity for a ruling thereon.
Judgment reversed.