Milligan v. StateMilligan v. State
Thе indictment charged defendant with buying, receiving, concealing, etc., various tools, the personal property of Faulkner Concrete Pipe Company, a Corporation, in violation of Section 338, Title 14, Code оf Alabama 1940. Defendant was convicted and sentenced to two years in prison.
The indictment described the stolen property as “one Cincinnati Tool Company five-eights capacity portable hand drill * * *, one Cincinnati Tool Company five-eights capacity drill for bench drill * * *, one Cincinnati Tool Company six inch capacity double end bench grinder * * *, one T8 Thor Electric saw * * *, one Smithway cutting torch with tip * * *, one acetylene regulаtor * * * and one oxygen regulator * * *, one set of fifty feet twin hose for oxygen and acetylene * * *, and fifteen аssorted drill bits * *
One Edwards, an employee of Faulkner Concrete Pipe Company, testified that he noticed а “number of tools” at the plant on Saturday before Labor Day, 1968, but when he returned to work on Tuesday after Labоr Day they were missing. He was called to the Satsuma Police Station and saw “the tools that I work with in the shop.” He described these articles and stated their value.
The State’s next witness, Crawford E. Taunton, testified that defendant, who wаs his son-in-law, asked him to take him to defendant’s brother’s service station, saying he had “some stuff he wanted to go up thеre.” On their way to defendant’s brother’s, Taunton was stopped in Satsuma by a police officer to cheсk the tag on Taunton’s car. At the request of the officer, Taunton opened the trunk of his car and Taunton saw “a power saw and welding torch and hose and the torch and some drills” that didn’t belong to him. The defendant then got out оf the car and told the officer “it was his stuff.” The officer instructed Taunton and the defendant to follow him in Taunton’s car. While Taun *114 ton was following the officer, defendant jumped out of the car and ran. Taunton went to the Satsuma jail that night and when he got out of jail at 10:00 O’Clock .the next morning the tools were not in his trunk.
Robert M. Glassen testified that in Septеmber, 1968, he was with the Satsuma auxiliary police. He stopped Taunton’s car for a tag check. He was lоoking for a car of the same description for transporting illegal whiskey, and noticed the car was •sitting low in the back. He asked Taunton to open the trunk and when he did he observed “a cutting torch, some hose, acеtylene and oxygen hoses, gages, drill motors, a bench grinder and a skill saw, and some various other tools.” The officer placed Taunton under arrest for improper tag and instructed him to follow him to the police station. On the way to the station Taunton pulled alongside Glassen and told him the defendant had jumped out of the car аnd ran. Glassen hunted for defendant and did not accompany Taunton to the police station. When he returned to the station the next morning Taunton had been released.
At this point the State rested its case and defensе counsel moved to exclude the State’s evidence on the ground, among others, that the State had failed to make a prima facie case of receiving and concealing stolen property. The сourt denied the motion.
The defendant testified he rode with Taunton to go to his brother’s house and the Satsuma police stopped them. The first time he had seen the tools in the trunk was when he looked in there in the presence of Taunton and Officer Glassen. He told the officer the tools were his after he had overheard Tauntоn tell him they belonged to defendant. He did this just to be “going along” with Taunton.
Assuming, without deciding, that the description Edwards gave tо the tools he saw at the police station fit the description of the tools listed in the indictment, the evidenсe still fails to show they were the same tools the officer saw in Taunton’s trunk or that the tools in Taunton’s trunk sufficiently fit the description of the articles set out in the indictment. The defendant was entitled to have his motion to exclude givеn, or failing that, to have the general affirmative charge given to the jury. Dawson v. State,
The trial court charged the jury as follows :
“The law says that the pоssession of recently stolen property places upon a defendant the burden of explaining his pоssession.”
Defense counsel reserved an exception to this portion of the charge, and the trial court further charged the jury as follows:
“Alright. The defendant doesn’t have to prove beyond a reasonable dоubt that he didn’t steal the property, or he didn’t know it was stolen. If you believe that he had in his possession propеrty that had recently been stolen from Faulkner Concrete Pipe Company, the law places upon him thе burden of explaining his possession. If he fails to make a reasonable explanation, then the presumption will arise that will support a conviction. On the other hand, if he makes a reasonable explanatiоn, then there is no such presumption. You do not have to conclude that he stole it, or that he knew it was stolеn.”
The possession of property recently stolen does not raise a presumption or inferencе, as a matter of law, of the guilt of the possessor, but the presumption arising from such possession is a matter оf fact to be passed upon by the jury.
Underwood v. State,
The failure of counsel to except to the extended oral instruction of the court was not a waiver of the original exception. Davis v. State,
For the errors pointed out hereinabove, the judgment is reversed and the cause remanded.
Reversed and remanded.