23 Ga. App. 400 | Ga. Ct. App. | 1919
Lead Opinion
The plaintiff in error was convicted of the offense of burglary. The undisputed evidence showed that, shortly after the commission of the burglary, the stolen goods—the fruits of the burglary—were found in the defendant’s possession. The defendant made an explanation of his possession of the goods. It was entirely a question for the jury whether this explanation was satisfactory to them.
In Tucker v. State, 57 Ga. 505, it was held as follows: “That part of the charge of the court to the jury, to wit: Whenever it is established that a larceny has been committed, and the stolen goods are immediately afterwards found in the possession of a person, that fact is presumptive evidence that the person is guilty of the larceny of the character charged to have been committed’, was unobjectionable.” In McGruder v. State, 71 Ga. 864, the Supreme Court approved the following'charge: “If the evidence satisfies the jury that the burglary was committed as alleged, and afterwards the stolen goods were found in the house and' room occupied by the defendants, this would be presumptive evidence of their guilt, unless explained [italics ours] ; and any statement made by either of them, explanatory of the goods being there at the time they were so found, and while they were there, must be duly con
The holding in Gravitt v. State, 114 Ga. (40 S. E. 1003, 88 Am. St. R. 63), is not only not contrary to the present ruling, hut supports it. In that case it was held that the possession of stolen property, not satisfactorily explained, does not create a presumption of law against the accused, but Mr. Justice Lewis, who wrote the opinion, clearly stated that the presumption was one of fact, and not of law. The charge of the court in that case was held to be error because the court stated in effect, that a presumption of law that the accused was guilty was created by the recent possession of stolen goods unaccounted for. - This distinction between a presumption of law and a presumption of fact is clearly set forth by Mr. Justice Cobb in Lewis v. State, 120 Ga. 508 (48 S. E. 227). In that case the following charge (which is substantially the charge complained of in the instant case) was approved: “Where a burglary has been committed, and money, goods, or other property which was in the house at the time of the burglary is soon thereafter found in the possession of a person who is unable to account for his possession, it raises a presumption of his guilt, and the jury would be authorized to find a verdict of guilty.” Judge Cobb, in that case, like Judge Lewis in the Gravitt case, distinctly held, in effect, that the recent possession of stolen property, unaccounted for, raises a presumption of guilt against the possessor of such property, but that this presumption is one of fact and not of law. We think, from the authorities cited above, we have conclusively shown.that the charge complained of in. the instant case was not erroneous.
Judgment affirmed.
Dissenting Opinion
dissenting.
There is not a particle of evidence in this case tending in any manner to connect the defendant with the alleged burglary other than an alleged recent possession by him- of some of the goods stolen, unsatisfactorily accounted for. His conviction is, therefore, dependent upon the. rule of law that upon the trial of a defendant charged with burglary, when a breaking is shown and the defendant is found in recent possession of the goods ■stolen, the possession unexplained to the satisfaction of the jury, the jury is authorized to infer his guilt. The judge charged the
After all, it is purely a question of a construction of the judge’s charge. Do we or do we not construe the language as submitting to the jury the proposition as a presumption of law, or as a presumption of fact ?” From an inspection of the original record in the Gravitt case, cited supra, the language of the charge as a whole comes nearer submitting the proposition as a presumption of fact than does the charge in the case we are now called upon to decide. As I plant my dissent upon the authority of the Gravitt ease, I quote at length from the charge in that ease: “A rule of law is that when there has been a larceny, a breaking and entering and taking away the goods of another, and some party is found to be in the recent possession of these goods soon after they were stolen, soon' after the burglary is committed, or larceny was committed, then if he fails satisfactorily to account for his possession to the satisfaction of the jury, the jury has the right to presume he is the guilty party, but if he shows satisfactorily to the jury that his possession is lawful, then nothing may be presumed against him as to his guilt. Now, in weighing the subject, all that the defendant said is to be considered by the jury. What did he say? Did he make different statements? Did he say whom he got them from, and always say the same, or was there a difference- about it? Was there any reason for telling it differently ? Examine it all. If it is satisfactory to your minds, if he made satisfactory explanations, then possession would not be proof of his guilt, but if it is not satisfactory, then possession would be proof of his guilt; but if it is not satisfactorily explained, then the law authorizes you to presume that he is the guilty party, because if he got them lawfully he could account for their possession, and if he didn’t the law presumes he is the guilty party; what I mean to say is this, if he has the goods in his possession, then he must account for that possession, and when he does, when he accounts for it to the satisfaction of the jury, then there is no presumption against him that he was the guilty party; but if he fails to account for it to the satisfaction of the jury, the law presumes he is the guilty party.” Nota bene the
This rule is easily misunderstood, and in cases of this kind, where a conviction depends entirely upon its proper application, it should be clearly stated to the jury. There should be no language in the charge from which the jury might infer that, as a matter of law, such testimony would establish guilt, or would, in the language excepted to, “raise a presumption of guilt.” The judge in his charge laid down an erroneous proposition of law, and in his subsequent language failed to correct it or so far explain it’ as to clearly deprive it- of its erroneous meaning. This was highly prejudicial to the rights of the accused, and a new trial should for this reason be granted. ' • ■