Hudson v. State

193 S.E.2d 919, 127 Ga. App. 452, 1972 Ga. App. LEXIS 912

• Court: Court of Appeals of Georgia
• Decided: October 26, 1972
• Docket: 47236
• Status: Published

Opinions

Quillian, Judge.

The appellant was tried and convicted of burglary. An appeal was then filed in this court. Held:

1. The appellant contends that his motion to suppress certain evidence, consisting of items found in and about a lake house of which the appellant had joint possession with another person, should have been sustained. The appellant’s argument is without merit as to the items which were found outside the house because they were observed by the sheriff when he was lawfully on the premises on another matter. United States v. Eagleston, 417 F2d 11; Davis v. United States, 327 F2d 301.

After seeing the items on the outside of the house the sheriff then obtained a search warrant and searched and located the other stolen goods in the house. The appellant contends the warrant was defective because the affidavit presented to secure the warrant did not show sufficient probable cause. Under that which was held in Lewis v. State, 126 Ga. App. 123 (190 SE2d 123), this contention is without merit.

2. Enumeration of error three contends the trial judge erred in failing to charge, without request, on circumstantial evidence, because all of the evidence was circumstantial. The defendant admitted that he helped to unload the stolen goods from a boat at the lake. A charge on circumstantial evidence is demanded only when the case is wholly dependent thereon. Travis v. State, 122 Ga. App. 800, 802 (178 SE2d 741); Pippins v. State, 224 Ga. 462 (162 SE2d 338).

3. The fourth enumeration of error complains that the trial judge’s charge in regard to recent possession of stolen goods was error because it was not supported by the evidence. This contention is without merit. The defendant admitted that he helped to carry the stolen goods from a boat on the lake to the premises of a house of which he and a codefendant had possession. Two or more persons may have had exclusive possession of stolen property. Cheatham v. State, 57 Ga. App. 858 (197 SE 70). In Summerville v. State, 66 Ga. App. 61 (17 SE2d 82), cited by the appellant, there was no evidence that the defendant had actual knowledge of the items in question.

Submitted June 5, 1972 Decided October 26, 1972. F. Houser Pugh, Owens, Littlejohn, Gower & Pugh, for appellant. E. Mullins Whisnant, District Attorney, for appellee.

4. The evidence was sufficient to support the verdict.

Judgment affirmed.

Pannell, Evans and Clark, JJ., concur. Bell, C. J., concurs specially. Hall, P. J., Eberhardt, P. J., Deen and Stolz, JJ., dissent.