Appellant was convicted of theft by taking based on an indictment which alleged the unlawful entry into the warehouse with the intent to steal. The warehouse was еntered sometime between Friday evening, June 16,1978, and Monday morning, June 19,1978. Two men were seen in a wooded overgrown area behind the warehouse, loading furniture into an automobile. The car’s license plate number eventually led рolice to the appellant’s home, where some of the furniture was lоcated.
Appellant denied any knowledge or participation in the break-in, claiming instead that he had found the furniture in the overgrown area and had considered it abandoned. The appellant testified that this took plаce on the Thursday after the weekend of the break-in. A state’s witness who saw the two men putting furniture in the car testified that this occurred on the Monday morning following the break-in. The jury returned a verdict of guilty of theft by taking.
*570 Appellant contends on appeal that the trial court erred in charging on theft by taking as a lessеr included offense, that there was a fatal variance between the оffense charged in the indictment and the offense of which he was found guilty, and that the jury’s finding of not guilty to burglary is repugnant to its finding of theft by taking. Held:
1. The state’s case against appellant relied upon the rule "long established in this state that where a theft, whеther by simple larceny, burglary, or robbery, is proven, that recent unexplained possession of stolen goods by the defendant creates an inference ... of fact sufficient to convict. This is true without
direct proof
or other circumstantial evidence that the defendant committed the theft.”
Smart v. State,
2. Likewise, appellant’s contention that the jury’s verdict was self-contradictory is without merit. The jury’s failure to find beyond a reasonable doubt that appellant burglarized the warehouse is not rеpugnant on the facts of the case to its finding of guilt to theft by taking. There was evidеnce that packing paper and boxes were found in the area whеre appellant testified that he had found the "abandoned” furniture. There wаs also testimony that the furniture was new and that identification markings on at least one item had been painted over. "The determinative factor ... is whether the acquittal of one charge necessarily includes a finding against a faсt that is essential to conviction for the other charge. If so, the evidence is then insufficient to support a verdict of guilty
*571
in the convicted charge.”
Conroy v. State,
3. Appellant also enumerates as error the deniаl of his motion in arrest of judgment, which was based on the fact that the indictment which was sent out with the jury had written upon it his previous guilty plea to theft by taking, which, of course, he had withdrawn. There was no objection made to the trial court concerning the indictment’s use by the jury. Failure of the appellant to call the mattеr to the attention of the trial court at the proper time precludes our consideration of the matter on appeal. See
Allen v. State,
4. Appеllant’s contention that the trial court erred in failing to direct a verdict of аcquittal is likewise without merit. After a review of the matters presented to the jury аnd available for their consideration, we find that a rational trier of fact could reasonably have found from that evidence proof of guilt beyond a reasonable doubt. Jackson v. Virginia,
Judgment affirmed.