34 S.E.2d 46 | Ga. Ct. App. | 1945
The evidence authorized the verdict; and none of the special assignments of error show cause for a reversal of the judgment.
The evidence showed the following undisputed facts: On October 26, 1944, the prosecutor parked his automobile in front of his house on Grant Street in Atlanta, Fulton County, Georgia, at *467 about 11 o'clock at night; in less than five minutes after so doing he heard the motor crank, ran out, and saw that the car was gone; he immediately telephoned the State and city police, and in forty-six minutes he was notified that his car, with two men in it, had been seized by the police in Marietta, Georgia; he went to Marietta and identified the car as his, and saw the defendant and Daniel P. Brown in the jail; those two men were in the car when it stopped in Marietta; Brown was driving, and the defendant asked a negro there how to get out to Tennessee; Brown and the defendant were well acquainted with each other, and Brown left Atlanta with his room rent paid up for several days, and had a ticket in his pocket to go to Jacksonville, Florida, to get a job there; the defendant and Brown were intoxicated when they were arrested in Marietta; and the value of the stolen car was $350. Brown testified that he bought the car for $45 from a stranger, who said his name was J. T. Smythe, of Gordon Street, West End, and that he received no bill of sale. Brown was the only witness for the defendant. He testified that the defendant saw him pay the money to the stranger. The defendant in his statement to the jury said that on October 26, he and Brown got together on Decatur Street in Atlanta and went into several "beer joints" and drank a considerable amount of beer. They then went to Brown's apartment, "and he and I paid the room rent for me to spend the night there with him." He also stated that he thought Brown had bought the car and that he did not know it had been stolen, and that when he got in it he had a pint of whisky in his pocket.
The main contention of counsel for the defendant is that, since the evidence disclosed that Brown was the driver of the car, the defendant was only a passenger, and that he could not be held to be in possession of the stolen car. Under the undisputed facts of the case, the contention is untenable. In Cheatham v.State,
The evidence authorized the charge upon recent possession of stolen property and the charge was not error for any reason assigned.
Special ground 2 of the motion for new trial alleges that the court erred in failing to charge the provisions of section 38-102 of the Code "as to the weight of circumstantial evidence." That section contains no provision "as to the weight of circumstantial evidence." Furthermore, even if the ground could be considered by this court, the evidence connecting the defendant with the offense charged was not wholly circumstantial, and no request to charge upon the weight to be given circumstantial evidence having been presented, the failure to so charge was not error. The court did not err in overruling the motion for new trial.
Judgment affirmed. MacIntyre and Gardner, JJ., concur.