| Ga. | Oct 19, 1896
1. Tbe plaintiff in error was convicted of tbe crime of burglary. Tbe State’s contention was, that be broke and entered a bouse, witbin tbe curtilage of tbe prosecutor’s dwelling-house, with intent 'to steal certain chickens, and did 'actually steal tbe same. Tbe evidence showed -that the bouse in question was broken, and that a theft of chickens therein contained was committed. Tbe material issue in tbe case was whether or not tbe accused was the guilty party. It also appeared that tbe prosecutor bad some chickens in a coop, and that they disappeared simultaneously with those in tbe house. Tbe offense was committed at night. There was no direct evidence to show tbe guilt of tbe accused, but-tbe State relied mainly upon the fact that on tbe next morning be was found in possession of chickens belonging to tbe prosecutor, which bad previously been either in 'the bouse or in 'the coop, or perhaps Some of them may have been in one and some in tbe other. It does not affirmatively and distinctly appear, however, that the accused bad in bis possession any of 'the chickens which were •taken from tbe 'house. Upon this state of facts, a charge in tbe following language was mot fair to tbe accused, and did not present the true law of the case: “If be [tbe accused] has not satisfied you from tbe testimony in tbe case, and be was found in tbe possession of them [tbe chickens], and a burglary had been committed, then, gentlemen, you would be authorized to return a verdict of guilty against him.”
2. We the more readily grant on'e in the present case for another reason. Even -assuming that the accused was in possession of chickens which had been taken from the •house, -and that it was therefore incumbent upon him to .satisfactorily explain how he obtained them, the evidence introduced by him in this connection was seemingly sufficient to show that he came honestly by the chickens he had. Three witnesses, whose testimony was in n-o material respect contradicted, testified that they saw the accused buy the chickens from a boy who publicly offered them for sale just outside the market-house on the m-oming following the burglary; and that the accused immediately, and without hesitation, surrendered them to the prosecutor when they were identified and demanded by the latter. We do not. see why the jury should not have accepted as true the testimony of these witnesses, none of whom were impeached.
In expressing our opinion as to the sufficiency of this evidence, we do not wish to be understood as holding that the accused was under any obligation of showing that he ■acquired possession of the chickens honestly, 'though in the present case the explanation offered would seem to justify the conclusion that he purchased them in entire good faith. Any explanation which negatived 'his commission of, or participation in, the burglary, would -have sufficed. Falvey v. The State, 85 Ga. 157. In this case, therefore, the -accused'undertook, successfully we believe, to go even further than tire law requires in accounting for his possession of the -stolen property. Judgment reversed.