Gaskin v. State

168 S.E.2d 183, 119 Ga. App. 593, 1969 Ga. App. LEXIS 1179

• Court: Court of Appeals of Georgia
• Decided: April 25, 1969
• Docket: 44215
• Status: Published

Opinions

Quillian, Judge.

The appellant contends that the trial judge erred in charging the jury “where one is found in possession of stolen goods immediately after the theft, the burden to prove that his was not a guilty possession rests upon him.”

A state of confusion exists as to whether the quoted charge has application to the type of crime for which this defendant was indicted. One line of decisions holds that, while the charge would be appropriate as to the principal thief, it would not apply to one who is charged with receiving stolen goods. However, another line of cases in direct conflict states that the charge is applicable.

The leading case which states that the charge would apply to one who is charged with receiving stolen goods is Williams v. State, 16 Ga. App. 697 (6) (85 SE 973). It should be noted that as authority for that position the Williams decision cites Daniel v. State, 65 Ga. 199, and Wiley v. State, 3 Ga. App. 120 (2) (59 SE 438), both of which were larceny and not receiving stolen goods cases.

In Bird v. State, 72 Ga. App. 843 (4) (35 SE2d 483), the court held: “Where one is charged with knowingly receiving stolen goods, and it is shown by the evidence that recently, after the commission of the offense, the stolen goods were found in the possession of the defendant, that fact alone would not authorize the jury to infer that the accused was guilty of receiving stolen goods knowingly unless he explained his possession to their satisfaction. Upon proof alone of recent possession of stolen goods, the law does not put the burden upon the possessor of stolen goods of proving that he was not guilty of receiving the goods knowingly, as is contended by the State. This rule, sought to be invoked by the State, would only apply to the sufficiency of the evidence which would authorize the jury to infer the guilt of the principal thief, McBride (the person who stole the goods), but would not apply to the sufficiency of the proof which would authorize an inference of the guilt of Bird (the person alleged to have knowingly received the stolen goods).” The reasoning set forth in the Bird case is the sounder posi-

tion and has been followed in other decisions of this court. See Austin v. State, 89 Ga. App. 866, 868 (81 SE2d 508); Washington v. State, 96 Ga. App. 844, 845 (101 SE2d 885); and Clarke v. State, 103 Ga. App. 739 (3) (120 SE2d 673). The cases of Williams v. State, 16 Ga. App. 697, supra, Arkwright v. State, 57 Ga. App. 221 (194 SE 876), Nichols v. State, 111 Ga. App. 699, 702 (143 SE2d 41), and' all other cases insofar as they contain language conflicting with the ruling made in this division are expressly overruled. The instruction excepted to was error.

An agent of the Georgia Bureau of Investigation testified over objection that he had gone to the defendant’s home around the middle of the year looking for some feed that had been stolen but did not recover any. This evidence was not admissible because it was irrelevant. Code § 38-201.

The appellant assigns error on the admission of evidence of a State’s witness that he had sold the defendant stolen goods on several occasions. The appellant contends that this evidence placed the defendant’s character in issue. However, there was cross examination of the witness wherein he was questioned on the same subject matter. Under Kell v. Hunter, 84 Ga. App. 792 (3) (67 SE2d 597), the admission of the evidence, even if erroneous, was harmless.

The remaining-enumerations of error are without merit.

Judgment reversed.

Felton, C. J., Jordan, P. J., Hall, Deen and Whitman, JJ., concur. Bell, P. J., Eberhardt and Pannell, JJ., concur specially.