(dissenting) :
I respectfully dissent and would affirm the conviction in the lower court.
The indictment charged the defendant with inflicting unlawful damage to the automobile of John Scarborough in an amount of more than $50.00. It is true that the State was required to prove that the damages were more than $50.00. The State offered in evidence three written estimates by body shop repairmen, the smallest being $125.00' and the largest $165.00. I agree that the estimates should not have been admitted in evidence without the testimony of the estimators. At the same time, I do not think, under the facts of this case, that such prejudiced the rights of the defendant so as to entitle him to a new trial.
The defendant was not required to, and did not, present evidence to indicate that the damages were less than $50.00. It was bis contention that he did not touch the car at all. Obviously, the jury did not believe his testimony.
Pictures of the damaged automobile were admitted in evidence. These indicate to me, beyond any question, that the *163damage was more than $50.00. There was testimony that the defendant struck the automobile twice on the top and that “it buckled the top” of the car.
After the judge indicated that the estimates would be admitted in evidence, he explained that, “the only purpose of these [estimates] is to show that the damage exceeded the sum of fifty dollars.” Counsel for the defendant then conceded, “Yes, sir. I don’t think there is any question about the damage.” I interpret the comment of counsel to admit that there was no contention that the damages were less than $50.00. The pictures in evidence clearly show substantial damage .to the top of the automobile. In this day of the inflated dollar, there can be no serious contention but that it would cost more than $50.00 to make the repairs.
I cannot say that the defendant did not receive a fair trial, and I would therefore affirm the lower court.