Parrish v. Hopper , 238 Ga. 468 ( 1977 )

Per curiam.

On this appeal from the Tattnall County Superior Court’s denial of his habeas corpus petition, Parrish attacks two unrelated but concurrent 1971 sentences, one for burglary, and one for armed robbery. Challenging his burglary conviction, Parrish presents here a constitutional attack on the instructions given his jury governing the inference to be drawn from his recent possession of stolen property. The sole issue presented in challenge to the armed robbery conviction is the validity of a police search of a certain suitcase belonging to him following his arrest.

1. The charge which Parrish attacks as burden-shifting is in pertinent part as follows: "I charge you on the law of this state relative to recent possession of stolen goods. I charge you that if you find from the evidence that a burglary was committed as charged in this indictment, and that recently after such burglary this defendant was found in possession of some of the articles alleged to have been stolen as a result of said burglary, that belonged to Mr. Green, that would be such a circumstance and inference from which you would be authorized to convict him of the burglary, unless he makes an explanation of his possession of the stolen goods, consistent with his innocence in your opinion, all of which you are to be the judges.

"This being an inference of fact and not of law, the same is therefore rebuttable, but there is a burden upon the defendant, if you find that he was — that a burglary was committed and that recently thereafter the defendant was in possession of some of the articles alleged to have been stolen, there is a burden upon him to prove to your reasonable satisfaction that he came in possession of those articles in a legitimate way and manner, that burden is upon him to satisfy your mind of that fact.”

In our opinion the first paragraph is not burden-shifting, but is crucially different from the charge condemned in Byrd v. Hopper, 402 FSupp. 787 (N. D. Ga. 1975). Although it places some duty on defendant to go forward with the evidence, it does not shift from the state the ultimate burden of persuading the jury of his guilt beyond a reasonable doubt. Barnes v. United States, 412 U. S. 837 (1973) (presumption of guilty knowledge from possession of recently stolen mail.)

In the second paragraph, however, the trial court fell into fatal error in instructing the jury that if they found recent possession "there is a burden upon him to prove to your reasonable satisfaction that he came in possession of these articles in a legitimate way and manner, that burden is upon him to satisfy your mind of that fact.” This language had the effect of suggesting to the jury that defendant had a burden of persuasion. It seemed to place on him a burden of proof of innocence at odds with the state’s burden of proving guilt beyond a reasonable doubt, and thus rendered this trial fundamentally unfair. Cf., Smith v. Smith, 454 F2d 572, 579 (5th Cir. 1972) (alibi charge). The second paragraph of this charge is far more damaging than the charge given in our recent decision, Thomas v. State, 237 Ga. 690 (229 SE2d 458) (1976).

2. At Parrish’s armed robbery trial the state introduced into evidence the gun taken in the robbery, which was found by Kentucky police in Parrish’s suitcase following his arrest in that state on misdemeanor charges. The admissibility of this weapon was hotly contested during the trial, and either was or could have been contested further on appeal. In these circumstances, we will apply the rationale of Stone v. Powell, — U. S. — (96 SC 3037, 49 LE2d 1067) (1976) and deny further review of this issue on habeas corpus. Accordingly, the sole issue raised concerning the armed robbery conviction is without merit. See also Jacobs v. Hopper, 238 Ga. 461.

Argued September 14, 1976 — Decided February 14, 1977 Rehearings denied March 9, 1977. James C. Bonner, Jr., for appellant. ArthurK. Bolton, Attorney General, JohnB. Ballard, Jr., Assistant Attorney General, for appellee.

Judgment affirmed in part and reversed in part; conviction for burglary vacated.

All the Justices concur in Division 1, except Hall, J., who concurs specially, and Nichols, C. J., and Undercofler, P. J., who dissent. All the Justices concur in Division 2, except Gunter and 'Ingram, J J., who dissent.