Holliday v. State , 23 Ga. App. 400 ( 1919 )

Broyles, P. J.

The plaintiff in error was convicted of the offense of burglary. The undisputed evidence showed that, shortly after the commission of the burglary, the stolen goods—the fruits of the burglary—were found in the defendant’s possession. The defendant made an explanation of his possession of the goods. It was entirely a question for the jury whether this explanation was satisfactory to them.

1. The following excerpt from the 'charge of the court was excepted to: “Where a burglary has been committed, and property which was in the house at the time of the burglary is soon thereafter, or recently thereafter, found in the possession of one who is unable to account satisfactorily for his possession (of which explanation you are the sole judges), it raises a presumption of his guilt.” We do not think the judge erred in giving this instruction; especially when, immediately after the excerpt just quoted, he charged as follows: “All of these matters are for the jury, under all the facts and circumstances of the ease, considering the nature of the property, the length of time which had elapsed after the alleged burglary, the explanation offered by the defendant, if any, for Jais possession, if he was recently in possession of them or any of the articles, if you should'believe the property was stolen from the house at the time and that a burglary was committed as charged in the indictment, as previously stated to you.” We concede that some confusion has arisen in the hooks on this subject.' This confusion seems to have grown out of the fact that in some cases it has been held error to charge that the recent possession of stolen property, unexplained, raises a presumption of law of the defendant’s guilt, while in other cases it has been held that such possession raises “a presumption of his guilt,” and that to so charge is not error. A careless reading of these cases, without noting the distinction between a presumption of law and a presumption of fact, might lead one into doubt as to the correct rule. There is, however, as can readily be seen, no conflict between these decisions when this distinction is kept in mind. The confusion is also partly caused by the fact that some of these decisions hold that the word “inference” should be used by the trial judge, instead of the word “presumption.” A presumption of fact, however, is really nothing more than an inference. “Presumptions are either of law or of fact. The former are conclusions and inferences which the law draws from given facts. The latter are exclusively questions for the jury, to be decided by the ordinary test of human experience.” Penal Code (1910), § 1014. “Presumptipns of fact are inferences as to the existence of some fact drawn from the existence of some other fact; inferences which common sense draws from circumstances usually occurring in such eases.” 1 Phil. Ev. 436; Black’s Law Die. 933. Presumptions of fact, says Prof. Greenleaf, “are in truth but mere arguments, of which the major premise is not a rule of law; they belong equally to any and every subject matter; and are to be judged by the common and received tests of the truth of propositions and the validity of arguments. They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived .from those connections, which are shown by experience, irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules, and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presumptions are derived wholly and directly from the circumstances of the particular case, by means of the common experience of mankind, without the aid or control of any rules of law whatever. • Such, for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which by means of such an instrument Jiad been burglariously entered.” 1 .Greenleaf on Evidence, § 44. In deciding the ease of Insurance Company v. Weide, 11 Wall. 438 (20 L. ed. 197), the Supreme Court of the United States defined a presumption to be “An inference as to the existence of a fact not actually known, arising from its usual connection with another which is known.” In Jones on Evidence (2d ed.), § 10, it is said: “Since these inferences, sometimes called presumptions of fact,, are mere permissible deductions from the evidence, it has often been suggested that they are in fact not presumptions at all, but they are constantly recognized [as such] in the decisions, although often in a confused and inaccurate manner.” “ 'Presumptions of fact’ are but inferences drawn from other facts and circumstances in a case and should be made upon the common principles of induction.” 3 Words & Phrases (2d Ser.), 1167.

In Tucker v. State, 57 Ga. 505, it was held as follows: “That part of the charge of the court to the jury, to wit: Whenever it is established that a larceny has been committed, and the stolen goods are immediately afterwards found in the possession of a person, that fact is presumptive evidence that the person is guilty of the larceny of the character charged to have been committed’, was unobjectionable.” In McGruder v. State, 71 Ga. 864, the Supreme Court approved the following'charge: “If the evidence satisfies the jury that the burglary was committed as alleged, and afterwards the stolen goods were found in the house and' room occupied by the defendants, this would be presumptive evidence of their guilt, unless explained [italics ours] ; and any statement made by either of them, explanatory of the goods being there at the time they were so found, and while they were there, must be duly considered, and may relieve the suspicions appearance.” In Davis v. State, 76 Ga. 16, it was said in the headnote that “Where a burglary has been committed, and a short time thereafter some of the property which was in the house broken open before and at the time of the burglary is found in the possession of the accused, if the possession of the property is .not accounted for, this affords a pi-esumption of guilt.” (Italics ours.) And in the opinion in that case Mr. Justice Blanford said: “Certain exceptions are taken to the charge of the court, and specific assignments are made thereon. But a careful examination of the charge of the court fails to show any foundation for the exceptions. The charge is correct, as we understand the law. The whole charge and the part excepted to is free from any exception. The whole of it is, as we understand it, that where a burglary has been committed, and a short time thereafter some of the property, which was in the house before and at the time of the burglary, is found in the possession of the accused, in such a case, if the possession of the property is not accounted for, this affords a presumption of guilt. This has been the law time out of mind. The decisions of the English courts, from whom we derived our law, and of all the courts in this country, fully establish this principle” [italics ours]. In Lundy v. State, 71 Ga. 360, the first headnote is as follows: “Where a burglary has been committed, and money, goods, or other property which was in the house at the time of the burglary is soon thereafter found in the possession of a person who is unable to account for his possession, it raises a presumption of his guilt, and the jury would be authorized to find a verdict of guilty.” In August v. State, 11. Ga. App. 798 (76 S. E. 164), the 4th headnote is as follows: “The following instruction was abstractly correct and warranted by the evidence: “The exclusive and unexplained possession of stolen property recently after a burglary, in the commission of which a theft was perpetrated, may raise a presumption of fact that the party in possession is the burglar, where the burglary has been established beyond a reasonable doubt; and the burden would be upon the person in whose recent possession the goods, if stolen, were found to explain such possession. It is a presumption arising out of fact, and is, therefore, a matter for the jury,—what would be recent possession is a matter for the jury, as is the satisfactoriness of the explanation. The presumption being one of fact, before it arises the State must have established the facts from which the inference is drawn, beyond a reasonable, doubt; and whilst the burden is upon the defendant, if such facts have been established beyond a reasonable doubt, to explain the possession to the jury, such explanation may be drawn from any evidence in the case which demonstrates it, or from the statement of the defendant, • if such statement satisfies the jury upon that point/ ” See also, to the same effect, 1 Greenleaf on Evidence, § 34; Jones on Evidence (2d ed.), §§ 9, 10; 12 Am. & Eng. Enc. Law, 845; Griffin v. State, 86 Ga. 257 (12 S. E. 409), Falvey v. State, 85 Ga. 157 (11 S. E. 167); Jones v. State, 105 Ga. 649, 650 (31 S. E. 574); Lester v. State, 106 Ga. 372 (32 S. E. 335); Cuthbert v. State, 3 Ga. App. 600 (60 S. E. 322); Bryant v. State, 4 Ga. App. 851 (62 S. E. 540).

The holding in Gravitt v. State, 114 Ga. (40 S. E. 1003, 88 Am. St. R. 63), is not only not contrary to the present ruling, hut supports it. In that case it was held that the possession of stolen property, not satisfactorily explained, does not create a presumption of law against the accused, but Mr. Justice Lewis, who wrote the opinion, clearly stated that the presumption was one of fact, and not of law. The charge of the court in that case was held to be error because the court stated in effect, that a presumption of law that the accused was guilty was created by the recent possession of stolen goods unaccounted for. - This distinction between a presumption of law and a presumption of fact is clearly set forth by Mr. Justice Cobb in Lewis v. State, 120 Ga. 508 (48 S. E. 227). In that case the following charge (which is substantially the charge complained of in the instant case) was approved: “Where a burglary has been committed, and money, goods, or other property which was in the house at the time of the burglary is soon thereafter found in the possession of a person who is unable to account for his possession, it raises a presumption of his guilt, and the jury would be authorized to find a verdict of guilty.” Judge Cobb, in that case, like Judge Lewis in the Gravitt case, distinctly held, in effect, that the recent possession of stolen property, unaccounted for, raises a presumption of guilt against the possessor of such property, but that this presumption is one of fact and not of law. We think, from the authorities cited above, we have conclusively shown.that the charge complained of in. the instant case was not erroneous.

2. The first two special grounds of the motion for a new trial are not complete within themselves. Before this court could understand the assignments of error made therein, a reference to the brief of evidence, or to other parts of the record, would be necessary. Therefore, under the ruling stated in the 2d headnote, these grounds can not be considered.

3. It is only where the defense of alibi is sustained, or where the evidence is close on this issue, that the trial judge is required to charge the law of alibi, in the absence of a request so to do. Moody v. State, 114 Ga. 449 (40 S. E. 242); Smith v. State, 6 Ga. App. 577 (65 S. E. 300); Throckmorton v. State, 23 Ga. App. 112 (97 S. E. 664). Under the evidence in this case the court did not err in failing to so charge.

4. The instructions of the court upon the subject of “reasonable doubt,” and of circumstantial evidence, when taken in connection with the entire charge, were not erroneous.

5. Under the ruling stated'in the 5th headnote, and. the facts of this case, the finding of'the jury, that the accused was guilty of burglary as charged in the indictment, was authorized by the evidence. It was entirely a matter for the jury to' determine whether the explanation given by the accused, as to how he came into possession of the stolen goods, was satisfactory to them.' They.determined that it was not. The presumption then arose that the accused was guilty as charged. There was no other evidence in the case which overcame this presumption, and as the verdict has been approved by the trial judge, and no error of law appears to have been committed upon the trial, this court is without jurisdiction to set aside the verdict.

Judgment affirmed.

Bloodworth, J., concurs. Stephens, J., dissents.