Defendant was charged in an indictment with two counts of burglary and one count each of aggravated assault and armed robbery. The evidence adduced at his jury trial showed that four youths broke into the home of the bed-ridden victim. The victim told the intruders she kept about $300 in a tin box in her dresser. One of the four found the tin box. Defendant was not the gunman but was identified as the leader, “giving the orders . . .” to tape the victim’s mouth. Defendant then ordered the gunman, Randy Jenkins, to fire the pistol. One of the.four then placed the pistol “to her head, pulled the trigger, and thbpistol did not fire.”
*499 The jury found defendant “guilty of count two, burglary with intent to commit robbery, guilty on count four, armed robbery, guilty on count three, aggravated assault.” His motion for new trial was denied and this appeal followed. Held:
1. The victim of the crimes in the case sub judice died before trial. Her testimony as given at a preliminary hearing, where she identified defendant, was read to the jury. In his first enumeration of error, defendant contends the trial court erred in overruling his motion in limine to exclude from evidence at trial the victim’s testimony as read from a transcript of the pre-indictment preliminary hearing. He argues that this procedure denied him his statutory right to a thorough and sifting cross-examination and his Sixth Amendment right to confrontation of the witnesses against him.
“The [preliminary] hearing testimony of [the victim identifying defendant as one of the burglars] was admissible at [defendant’s] trial under the provisions of Code § 38-314 [now OCGA § 24-3-10]. See California v. Green,
2. Next, defendant contends the trial court erred in admitting into evidence the victim’s out-of-court statements as related to the jury by Officer Deborah E. Foote, Detective Ethel Brown King, and the victim’s son, Detective Greg Milton. He argues this testimony was hearsay and deprived him of the right to cross-examine.
(a) “Allowing testimony by a police officer as to [photographic] line-up identification of the [defendant by the victim] was not improper.”
Jackson v. State,
(b) Detective King’s testimony, whereby she related the victim’s identification of the perpetrators by describing them to Detective King, was properly admitted as part of the res gestae.
McKinney v. State,
(c) Although we find no error in this instance, any error in allowing Detective Milton to repeat, to the jury unsworn statements made at the scene by his mother, the victim, is harmless because Detective Milton’s testimony is cumulative of the victim’s properly admitted testimony under oath as given by her at the preliminary hearing.
Assad v. State,
*500 3. Defendant enumerates the general grounds, arguing that his conviction for burglary fails because the State failed to prove a completed armed robbery. This enumeration is without merit.
“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .” OCGA § 16-7-1 (a). To complete the crime of burglary, it is not necessary that a defendant actually commit a completed theft; it is sufficient if he enters without authority and with the intent to commit a theft or felony.
Johnson v. State,
“The matter of whether defendant intended to commit a felony when he [and his companions] entered the [victim’s] house was for determination by the jury under the facts and circumstance proved.
Thompson v. State,
“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a). Defendant further contends there was no evidence of an actual taking. We disagree.
The victim testified at the preliminary hearing that the gunman, Randy Jenkins, “grabbed the [tin] box out of the thing, and then dropped it.” He “just throwed it down. . . .” In our opinion, this is sufficient to prove a taking by use of the pistol. “ ‘The slightest change of location whereby the complete dominion of the property is transferred from the true owner to the trespasser is sufficient asportation.’
Johnson v. State,
Judgment affirmed.