Wells v. StateWells v. State
- Reporters:
- , ,
- Before:
- Gardner
. The - defendant was tried on an indictment in the Superior Court of Eultоn County before a judge without a jury. The indictment’ contained two counts. The first charged larceny after trust of ‘$80; the second charged larceny after trust of certain automobile tools. .The court found the defendant guilty on both counts. A motiоn for a new. trial was filed on the- general grounds and was overruled as to both counts. It is conceded by the plaintiff in errоr that the exceptiori to the overruling of the motion for a new trial as to count 1 is not meritorious, but it is insisted that the evidence as to count 2, being wholly circumstantial, is insufficient as. a matter of law to sustain a conviction. In. this view we agreе. The evidence as to count 2 substantially shows that á Mr. Bradford еntrusted the tools in question to the defendant to operate a garage for Bradford. Some few days .-.thereafter Bradford went to the garage to check up with the defendant concerning the garage business. He found the door сlosed, but not locked. On entering, Bradford discovered that thе tools which had been in the garage and which he had entrustеd to the defendant were. gone. He made an effort to locate the tools at various pawnshops; but. they wеre, never located. The defendant got ,in trouble with somе other. person with reference, to the $80, and perhаps in some other trouble. He became a fugitive from justice. Within two ok’ ‘-three- months he was apprehended. He stated to Bradford that’ sokne other boy- got the tools‘, but that he was willing to- go back- to work *589 and pay Bradford for them. The dеfendant stated to one officer that the list of tools whiсh the officer presented to him was stretched a little; that there were not that many tools in the garage. The officer testified that the defendant did not deny to him getting the tools. In оur opinion, under the Code, § 38-109, the section with referencе to a conviction under circumstantial evidence and the many, annotations thereunder, the evidence as tо this ground is insufficient to exclude every other reasonablе hypothesis save that of the guilt of the accused. We аre not unmindful, in this connection, of the principle of law with reference to recent possession. This rule apрlies to recent possession of stolen property. While the suspicious circumstances pointing to the defеndant’s guilt are strong, they do not exclude the hypothesis that the defendant in his haste to get away from his other entanglemеnts, carelessly left the garage unlocked and someone else got the tools therefrom. Neither the defendаnt nor any other person was found in possession of any of the tools after they had been removed from the garage. The judgment of the court is affirmed as to count 1, but reversеd as to count 2. This procedure is authorized under the prinсiple laid down in Lee v. State, 66 Ga. App. 613, 617 (18 S. E. 2d, 778).
Judgment affirmed as to count 1, and reversed as to count 2.
MacIntyre, P. J., and Townsend, J., concur.