135 Ga. App. 931 | Ga. Ct. App. | 1975
Lead Opinion
1. The motion to suppress evidence of automobile parts stripped from a stolen car and lying in plain view in the back of an open truck was properly denied. Smith v. State, 132 Ga. App. 691 (1) (209 SE2d 112). Where the defendant, driving at a fast clip, skidded into the highway in front of the peace officer’s vehicle and immediately thereafter "broadsided” into a side road, the officer was within his rights in attempting to stop the vehicle and in following it when it did not do so. The driver, who is the defendant in this motor vehicle theft case, after about a half mile left the road and drove the truck through a com field into a woods, jumped out and attempted to flee along with a passenger, and was shot and wounded. The defendant was taken to the hospital and the vehicle to the station house, where the automobile parts (hood, fenders, bumper, grill, etc.) were identified as parts stripped from a stolen car which had been discovered in the vicinity two days previously. Assuming, as contended, that this was a "search,” it is not rendered illegal by the fact that this was not done at the point of detention. "There is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” Chambers v. Maroney, 399 U. S. 42, 52 (90 SE 1975, 26 LE2d 419) quoted in Caito v. State, 130 Ga. App. 831, 835 (5) (204 SE2d 765).
2. Where the defendant’s guilt of theft of a motor vehicle is wholly dependent on the inference arising from possession of a part of the stolen car, and such possession is shown by uncontradicted and unimpeached testimony to be consistent with his innocence, the evidence is insufficient to warrant conviction. Law v. State, 106 Ga. App. 782 (128 SE2d 204); Cox v. State, 109 Ga. App. 797 (1) (137 SE2d 516). Where, on the other hand, other circumstances appear pointing in their totality to the guilt of the accused, a jury question may be presented. Howington v. State, 110 Ga. App. 452 (138 SE2d 677); Freeman v. State, 112 Ga. App. 307 (145 SE2d 44).
The vehicle was stolen in Hall County on the afternoon of February 12 and found off a dirt road in Lumpkin County the following day with the front end stripped, strongly suggesting that the thieves or their confederates had dismantled the vehicle within a few hours. The parts were found in the defendant’s possession six or seven miles away, on February 15, two days later. The defendant testified that he and the companion in the car with him had been rabbit hunting on February 14 and found the parts piled up near a road, and had returned the following day to take possession of them. The men were friends and lived in the same neighborhood, as did their families. Both fled instead of stopping when signaled by the deputy sheriff. The defendant’s companion then disappeared, and the defendant testified that he had tried unsuccessfully to have a subpoena served on him. Flight is a circumstance to be considered among others as evidence of guilt. Smith v. State, 122 Ga. App. 470 (177 SE2d 485). The unlikelihood that the car would have been stolen and immediately stripped, and the parts then abandoned near an open road, the flight when pursued by the sheriff, the absence of the only witness in a position to corroborate the defendant’s explanation, and the
3. Motor vehicle theft is a form of theft by taking under Code § 26-1802. Therefore, under Code § 26-1811 venue may be laid in any county in which the accused exercised control over it. Bell v. State, 123 Ga. App. 739 (182 SE2d 344). Code § 26-1813 deals merely with the punishment for such theft but does not excise it from the general class named in Code § 26-1811. Where both the vehicle and the parts were found in Lumpkin County, venue was properly established.
4. Error is enumerated on instructions relating to recent possession of stolen property in which the court said that "such possession, if not explained by all of the evidence to the satisfaction of the jury consistent with the innocence of the defendant, may raise an inference of guilt.” Does the phrase "all of the evidence” mean "the evidence as a whole,” or would it be interpreted, as contended by the appellant, to mean that all of the evidence must be consistent with innocence before such inference would be rebutted? The court continued: "This is an inference that the jury may draw, but is not compelled to draw from the evidence, and is not an inference which the law draws from the facts.” We do not think the language such as to mislead the jury into believing that they could not find the defendant’s explanation satisfactory if they found conflicts in the evidence before them. This ground is without merit. Further, Enumerations 5, 6 and 7 deal with charges explaining the meaning of the terms parties to crime, sole or joint possession, and actual or constructive possession. The last of these was expressly withdrawn. In view of the defendant’s testimony that he and a companion found the parts in the woods and later went together to retrieve them, these instructions were not inappropriate.
5. Enumeration 8 complains that the court charged that "if you find and believe that the defendant is not guilty of any crime, or if you have a reasonable doubt of his guilt, it would be your duty to acquit.” The charge might well have been misleading under the circumstances.
6. Where a reducible felony is involved it is to the defendant’s advantage, and he is entitled to have an instruction given the jury that they may recommend misdemeanor punishment, even in the absence of a request, and it is reversible érror to fail to do so. Moody v. State, 216 Ga. 192 (115 SE2d 526). The situation still obtains under the present Code § 26-3101 which superseded Code § 27-2501. Ezzard v. State, 229 Ga. 465 (6) (192 SE2d 374). The court did not err in instracting the jury that they could make such recommendation, which "is not binding on the court, but will be considered.” As a matter of fact the jury did make the recommendation and the court refused to follow it, but instead rendered the minimum felony sentence. In such cases the court must give the jury this option, but it places no onus on him to follow the recommendation forthcoming. It follows that the charge was without error.
Judgment affirmed.
Dissenting Opinion
dissenting.
Defendant was convicted of theft of a motor vehicle (actually the parts of such vehicle); his motion for new trial was overruled, and he appeals to this court. The majority affirms.
I dissent from the majority ruling because of what I conceive to be three serious and grievous errors in the charge of the court. Two of the errors occur in Enumeration no. 10, and one of the errors occurs in Enumeration no. 8.
1. Enumeration no. 10. (a) The jury retired at 9:15 a.m. and returned at 11:55 a.m., and the foreman addressed the following question to the trial judge: Q. "It was regarding the situation . . . there was something in there about the possession of the parts as related to the car, I believe, and what the possibilities were relating to that?” The court answered as follows: "Well, the Court will give you this rule of law, which I believe will answer your question. If the jury finds under the rules given in charge that an offense for which a conviction could be had under the indictment was committed by someone, and that all or a part of the goods described in the indictment were recently thereafter found in the possession of the defendant on trial, such possession, if not explained by all the evidence to the satisfaction of the jury consistent with the innocence of the defendant, may raise an inference of guilt sufficient to authorize the jury to identify the defendant as a guilty party and convict him of the crime under the indictment. This is an inference which the jury may draw, but is not compelled to draw from the evidence, and is not an inference which the law draws from the facts. Now, Mr. Foreman and members of the jury, do you have any other inquiry that you wish to make?”
This was at a very critical stage of the trial as it was
(b) But the trial judge used certain language in this excerpt which is even more argumentative and prejudicial than the totality of the entire excerpt. The trial judge squarely placed upon the defendant the duty of explaining by all the evidence his possession of the stolen articles. His exact language was: ". . . such possession, if not explained by all the evidence to the satisfaction of the jury consistent with the innocence of the defendant, may raise an inference of guilt sufficient to authorize the jury to identify the defendant as a guilty party and convict him of the crime under the indictment.”
This is even more argumentative and more prejudicial than the entire tenor of the excerpt, which we have pointed out did not even give voice to the possibility of acquittal. There were two parties to this litigation, to
There is no question whatever but that a defendant is entitled to explain his recent possession of stolen property and have that explanation accepted despite evidence of the state to the contrary. In August v. State, 11 Ga. App. 798 (4) (76 SE 164), it is held:"... And whilst the burden is on the defendant, ... to explain the possession [of stolen goods] to the jury, such explanation may be drawn from any evidence in the case which demonstrates it, or from the statement of the defendant, if such statement satisfied the jury upon that point.” (Emphasis supplied.) But in the case now under consideration the trial court reversed this rule and required defendant to show by all the evidence that his possession was consistent with innocence. This error in the charge warrants a reversal and a new trial.
But the trial judge in effect, "threw the book” at the defendant and charged the jury it would be their duty to acquit "if you find and believe that defendant is not guilty of any crime.” Surely this imposed upon him a burden that he was not required to carry; it was a catch-all and a general charge that if he stole the automobile in question, or committed any other crime, he would be guilty, otherwise not guilty. Suppose he violated the speed law while on the way to court? Suppose he was guilty of assault? Under the trial judge’s charge, he should have been convicted because these come under the broad category of "any crime.” There seems no point in expending further discussion of this obvious error. See Henderson v. State, 134 Ga. App. 898 (216 SE2d 696).
3. Because of the two errors in the charge enumerated as no. 10, and the one error in the charge in enumeration of error no. 8, this case should be reversed and a new trial granted to defendant, and I so vote.
Concurrence in Part
concurring specially with the dissent.
I agree with the majority opinion as to its rulings as to enumeration of error no. 10, and I disagree with Division 1 of the dissent.
However, I agree with Division 2 of the dissent in that it was reversible error under the facts of this case to charge "if you find and believe that the defendant is not guilty of any crime, or if you have a reasonable doubt as to his guilt, it would be your duty to acquit.”
In my mind, the questions of the jury and charge given to them could have confused them into believing that if they found defendant’s possession of stolen goods