28 Ga. App. 101 | Ga. Ct. App. | 1922
The 3d headnote alone will be discussed. In connection therewith the following is the opinion of the majority of the court: “In Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322), Gravitt v. State, 114 Ga. 842 (40 S. E. 1003, 88 Am. St. Rep. 63), and Harris v. State, 18 Ga. App. 710 (2) (90 S. E. 370), the charge excepted to was materially different from the charge complained of in this case. In the Guthbert ease and in each of the other cases referred to the charge was to the effect that .the presumption of guilty arising from the unexplained recent possession of stolen property was a presumption of law, whereas it is only a. presumption of fact to be passed upon and determined by the jury; but in the instant case the jury were clearly told that the presumption was only one of fact, to be passed on by them, and was not one of law. It is true that in the beginning of his charge on the question of recent possession, the judge did say that the recent unexplained possession of stolen property 'is a strong circumstance to be considered by the jury/ but this was merely a statement (and a true statement) of an abstract principle of law. When the judge got down to the facts of the case he charged only that such possession was a ' circumstance ’ to be considered by them and which authorized them to find the defendant guilty.”
It is easy to see how the learned judge who presided in the trial of the present case was led into error by expressions found in re
It is undoubtedly true that the recent possession of stolen property, unaccounted for, will raise a presumption of guilt, but this is a presumption of fact and not of law, and, being a presumption of fact, it is an inference to be drawn by the jury and not a matter to be determined by the court. Whether this presumption is weak or strong will depend upon the facts of the particular case. In August v. State, 11 Ga. App. 798 (4) (76 S. E. 164), referring to the presumption arising from the possession of stolen propert}^ this court held: “ It is a presumption arising out of fact, and is, 'therefore, a matter for the jury,— as is the satisfactoriness of the explanation.” See Lester v. State, 106 Ga. 371 (32 S. E. 335). In Cuthbert v. State, supra, Chief Judge Hill said (p. 604) : “From all these decisions we think that the proper rule on this question is that any presumption that may be drawn from the unexplained possession of the fruits of a crime which has been recently committed is a presumption of fact merely. In other words, it is
For the judge to charge the jury in this case that “the recent possession of stolen property, unexplained, is a strong circumstance to be considered by them ” (italics mine) is for him to in
From the rulings in the cases cited above the writer thinks the judge erred in giving the instructions which we have just been discussing. This error was not cured even though the judge, in a subsequent portion of his charge, did correctly instruct the jury on this subject. “Where an erroneous instruction is given on a material issue, the error is not rendered harmless by a subsequent statement of the judge that he has given the correct rule in another part of his charge. He must make it plain and clear to-the jury that the first instruction was incorrect and is expressly retracted, and that the subsequent statement is correct and is substituted for the incorrect one; and it must appear, therefore, that the jury could not have been misled or confused by the two inconsistent statements.” Pelham Mfg. Co. v. Powell, 6 Ga. App. 308 (4) (64 S. E. 1116). See White v. State, 24 Ga. App. 122, 126 (100 S. E. 9), and cases cited. If, under the ruling of the majority of the court in this case, the judge, under certain conditions, could tell the jury that “the recent possession of stolen property, unexplained, is a strong circumstance to be considered by them, surely he could tell them, under different conditions and where in his opinion the facts authorized it, that “if the property was such that it passed readily from hand to hand, or such as the defendant might reasonably have in his possession, this presumption might justly he regarded as wealc.” (Italics mine.) For the judge so to charge would be to invade the province of the jury and to express or intimate what had been proved, and would be a direct violation of § 1058 of the Penal Code of 1910 (Civil Code, § 4863).
Affirmed.