157 Ga. App. 85 | Ga. Ct. App. | 1981
Lead Opinion
The defendant appeals his conviction of the offense of theft by receiving stolen property. Held:
1. We find no merit in defendant’s enumerations of error alleging the “general grounds,” failure of the trial court to direct a verdict of not guilty, and overruling of the motion for new trial. The
2. The trial court did not err in refusing to give the defendant’s requested charge that “[p]roof of possession of recently stolen property will not authorize an inference that the person received it with knowledge that it was stolen-.” This is a correct but incomplete charge because it omitted the principle that “unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge.” Higginbotham v. State, 124 Ga. App. 489 (3) (184 SE2d 231); Borgh v. State, 146 Ga. App. 649, 650 (247 SE2d 137); James v. State, 150 Ga. App. 357 (1) (258 SE2d 40).
3. The defendant argues, on appeal, that it was error for the trial court to charge the jury if they believed “the crime of burglary was committed as charged in this Bill of Indictment and certain personal property was stolen” and “if recently thereafter the Defendant was found in possession of the stolen property, or any of the stolen property, that would be a circumstance along with all the other evidence adduced from which the jury may infer guilt . . .”
The defendant contends that “the crime of burglary” was not the crime charged in the indictment, but “theft by receiving stolen property” was charged, and “the court’s instructions to the jury must be tailored to fit the charge in the indictment and the evidence admitted at trial.” The defendant is correct that the trial court’s instructions should be tailored to fit the charge in the indictment and the evidence admitted at trial. Walker v. State, 146 Ga. App. 237, 244 (246 SE2d 206). However, the trial court’s instruction in this instance was a lapsus linguae — an insertion of the inapplicable word “burglary” where the words “theft by receiving” should have been. Our Supreme Court has held that “a mere verbal inaccuracy in a charge, which results from a palpable ‘slip of the tongue,’ which clearly did not mislead or confuse the jury is not cause for a new trial.” Siegel v. State, 206 Ga. 252, 254 (56 SE2d 512). Clearly the offense of burglary was not involved in the instant case, and the trial court had opened its instructions to the jury with the correct designation of the charge in the indictment — “unlawfully receive and retain stolen property.” Shortly thereafter he again charged the jury: “The defendant being charged with the offense of theft by receiving stolen property, I give you in charge the definition of such offense. I instruct you that theft by receiving stolen property is defined as follows:...”
The charge, as given, was an otherwise correct statement of law. An almost identical charge was approved in Aiken v. State, 226 Ga. 840,843-844 (178 SE2d 202) (U. S. Cert. den. 401 U. S. 982), and in the headnote the Court noted that “[t]he charge on the inference which arises from the possession of recently stolen property, unaccounted for, is not subject to the complaints made against it.” Id. (2). See also Reynolds v. State, 231 Ga. 582 (4) (203 SE2d 214). This Court has also approved the same charge in Shearer v. State, 128 Ga. App. 809 (7) (198 SE2d 369); see also McGinty v. State, 134 Ga. App. 399, 403 (214 SE2d 678). This enumeration is without merit.
Judgment affirmed.
Dissenting Opinion
dissenting.
While I would agree with the majority’s holding in Divisions 1 and 2, for the reasons set forth below I would reverse the judgment of the trial court.
I cannot agree that the trial court erred in refusing to charge appellant’s Request to Charge No. 1, which reads as follows: “Proof of possession of recently stolen property will not authorize an inference that the person received it with knowledge that it was stolen.” The charge did not state a full and complete statement of the law, because it omitted the principle that “unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge.” Higginbotham v. State, 124 Ga. App. 489 (3) (184 SE2d 231).
I do agree, however, with defendant’s contention that the trial
The trial court’s use of the term “along with” in the context of its charge gives rise to the erroneous implication that guilt may be inferred solely from recent possession of stolen property, although other circumstances may also or likewise imply defendant’s guilt.
The trial court’s failure either to clearly instruct that recent possession must be in conjunction with other evidence in order for an inference of guilt to arise; or to instruct that recent possession standing alone will not authorize an inference of guilt, constitutes reversible error. Hilton, supra.
In none of the cases cited by the majority is the particular issue of this case raised; that is, that the charge did not instruct the jury that, standing alone, recent possession of stolen goods will not authorize a conviction for theft by receiving. A similar charge was approved in Aiken v. State, 226 Ga. 840 (2) (178 SE2d 202), but in that case the Supreme Court addressed the question of whether the charge was burden-shifting, and not the issue of whether the charge fully instructed the law on recent possession.
