On August 20, 1985, а trailer loaded with 115 bales of scrap aluminum was removed from the property of General Extrusion, Inc., in Union City and was later discovered in a wooded area in DeKalb County, attached to a tractor bearing the name “Tiffany Trucking.” The tractor bеlonged to Freddie Henderson Lundy, who claims he had answered a call for help from a cab with mechanical difficulties оn the expressway in DeKalb County. When the police arrived, it was being unloaded by Lundy and Ralph Bigby. The men were indicted in Fulton County on two counts of theft by taking. Lundy was found guilty on both counts and Bigby on count two. The jury was unable to reach a verdict as to count one (theft of the Matlock trailer) against Bigby, and a mistrial was declared as to that count.
1. Appellants contend that count two of the theft by taking charge should have been dropped because both counts arose out of the same transaction. They rely upon the holding in
Hubbard v. State,
2. The evidence was sufficient to support appellants’ convictions of theft by taking. “ ‘To convict a defendant based upon recent possession of stolen goods, it must be shown the goods were stolen and there must be an absence оf or an unsatisfactory explanation of that possession. [Cit.] The proof of these facts beyond a reasonable doubt
*95
creates a presumption or permissible inference of the defendant’s guilt, that is that the defendant himself committed thе crime charged and proven.’ [Cit.]”
Henderson v. State,
The evidence in the instant case satisfied the standard of proof set forth above. Lundy testified as to how he came into possession of the trailer and claims that he drove it to his mother’s house to repair thе broken back door. He claims he picked up Bigby en route to assist him. When they were moving the scrap aluminum to repair thе door, the police arrived. An employee from the Bonnell Company testified that he had seen the trailer earliеr in the day and that there was no damage to the rear doors. “ ‘ “It was within the jury’s province to believe that appellant’s еxplanation of his possession advanced at trial was not a reasonable or satisfactory one.” ’ ”
Barr v. State,
3. Under OCGA § 17-2-2 (h) venue сan be established “in any county in which the evidence shows beyond a reasonable doubt that [the crime] might have been cоmmitted.” Where venue is not contested at trial, only slight proof is needed.
Amerson v. State,
4. Appellants contend that there was a fatal variance in the indictment bеtween the allegata and probata in that the indictment alleged that they took “115 bales of aluminum all of a value exceeding $500,” and that the prosecution was required to prove the number of bales alleged because they were a material part of the indictment. We find that a witness testified that there were 115 bales of aluminum on the trailer when it was stolen. Even if other evidence showed that there were only 86-95 bales, “[t]his variance was of the
de minimus
variety and could not have harmed the defendant in any way. The indictment fully and definitely informed the defendant of the charge against him and did not leave him open to a subsequent prosecution due to any defect or ambiguity therein.”
Bowman v. State,
5. The ownership of the stolen trailer was sufficiently proven, and appellants’ contention that because the certificate of title for it was not the correct title certificate ownership was not proven is without merit. The indictment alleged that a 1986 Matlock trailer of a value exceeding $500 and the property of William L. Bonnell Company was taken. A company employee testified that a 1986 Matlock
*96
trailer was taken and that its value was $5,000. “ ‘It is well established that those who steal will not be permitted to raise “nice and delicate questions” as to the title of that which is stolen.’
Ingram v. State,
6. Appellant claims thаt the rule of sequestration was violated because a witness for the state was permitted to remain in the courtroom after being excused at the conclusion of his testimony; that the court erred in allowing the witness to be recalled for rebuttal testimony; and that the witness should have been resworn.
Violation of the rule of sequestration goes to the credibility of a witness, not to his competency to testify.
Jordan v. State,
7. Appellant Bigby contends that the trial court was deprived of venue as to count two when the court declared a mistrial as to count one. We disagree. As stated in Division 3, above, he was found in recent possession оf stolen property for which he gave an unsatisfactory explanation, and there was some evidence that the theft occurred in Fulton County.
Judgment in Case No. 74927 is affirmed.