Hornbuckle v. State , 76 Ga. App. 111 ( 1947 )

1. A verdict of guilty of larceny is supported by the evidence, where, upon the trial of one so charged, the evidence establishes the corpus delicti, recent possession of the stolen property after its theft, and a confession of guilt by the accused.

2. Where upon the trial of a defendant for larceny the State relies upon the recent possession of the stolen property in the defendant, and the evidence discloses that on each occasion when the defendant was seen with the property another person not charged with its theft was also with it, testimony of witnesses on behalf of the defendant to the effect that they had heard such other person make statements claiming the property, its possession and the right to so possess the same was properly excluded as hearsay.

3. Upon the trial of one charged with the offense of larceny, where the corpus delicti has been shown, the defendant has confessed to the theft of the property, and he along with another was on several occasions immediately after its theft seen with the stolen property, it is not error for the court to submit to the jury the rule that recent possession of stolen property by the defendant may authorize a conviction unless satisfactorily explained.

4. Where on the trial of one charged with the offense of larceny, the corpus delicti has been established, there was evidence that the defendant was seen with the property immediately after its theft, the defendant confessed his guilt, and on the trial put up a number of witnesses in his behalf tending to establish an alibi, in the absence of any request on the subject the following charge is not error: "I charge you, gentlemen, that alibi as a defense involves the impossibility of the accused's presence at the scene of the offense at the time of its commission, and the range of evidence with respect to time and place must be such as reasonably to exclude the possibility of presence. Alibi as a defense must be established to the reasonable satisfaction of the jury, and must be such as reasonably to exclude the possibility of presence of the defendant at the scene of the offense at the time of its commission and when so established to the reasonable satisfaction of the jury, the jury should acquit. Any evidence in the nature of an alibi should be considered by the jury in connection with all other evidence in the case, and if in so doing the jury should entertain a reasonable doubt as to the guilt of the accused they should give him the benefit of that doubt and acquit him."

5. Self-serving declarations are generally inadmissible.

6. To entitle one convicted of a crime to a new trial on the ground of newly discovered evidence, such evidence must be admissible and must not be merely cumulative.

DECIDED NOVEMBER 4, 1947. The plaintiff in error, to whom we shall hereinafter refer as defendant, was tried in the Superior Court of Fulton County on May 22, 1947, for the offense of larceny of an automobile. The evidence authorized the jury to find that Jack Hood, the owner of the automobile which was the subject of the larceny, parked it on North Avenue behind Sears Roebuck Company, on or about January 15, this year, at approximately 8 o'clock in the morning; upon returning to this place for his car at 7 o'clock in the evening it was gone; that about two weeks later he recovered his car from the police officers at Apopka, Florida; that the defendant and one Jeanette Knight were both residents of the vicinity of Lawrenceville, Georgia; that together these parties were seen in possession of the automobile in and around Lawrenceville on the following day and for several days following its theft; that on or about January 24, the defendant was arrested under the wheel of the stolen car in Apopka, Florida; that the car at that time bore a Florida truck-license tag; that the defendant was arrested for the offense of having the wrong tag on the car; that a search of the car disclosed in the trunk and behind the lining the Georgia tag purchased for this car; that upon being notified, the owner and an Atlanta police officer went to Florida and brought back the defendant and the car; that at the time of the defendant's arrest in Florida, Jeanette Knight, about 19 years of age, and her brother, Daniel Adams, about 16 years of age, were in the car with the defendant who was about 20 years of age; that the defendant told the arresting officer that his name was Guy Kelly Knight; upon being questioned the defendant told the Florida police officer that the automobile belonged to a brother of his and that he had borrowed it to make this trip; that upon the return trip to Atlanta the defendant freely and voluntarily confessed the theft of the automobile from the place where it had been left by the owner, he at the time being at Sears Roebuck Company with his mother who worked there.

The defendant put on a number of witnesses tending to establish an alibi. He also offered to prove certain statements alleged to have been made by Mrs. Jeanette Adams Knight, in which she either claimed the ownership of the automobile as having been bought with money sent to her by her husband who was overseas or belonging to her brother and loaned to her, thereby assuming full responsibility for the possession of the automobile. She did not testify as a witness on the trial. The defendant made a statement in which he denied having stolen the automobile; denied having any knowledge of the fact that it was a stolen automobile; that at the time of his arrest and on other occasions, he was with Jeanette Knight; that she "ran after him" and proposed taking him to Florida; that she made statements to him consistent with her right to have the car, and that he thought she did have the possession of the automobile legally; that it was at her suggestion that he told the Florida officer on the occasion of his arrest that it was his car, she having suggested it because through his Florida relatives he could make bond. He insisted that Jeanette Knight stole the automobile and was the one in possession of it; he named several witnesses to whom he stated she had made statements regarding her possession of it. The testimony of some of these witnesses as to such statements was offered and ruled out by the court on objection by counsel for the State.

Upon being convicted by the jury the defendant filed a motion for new trial on the general grounds which was later amended by adding 7 special grounds numbered 4 to 10. Special ground 4 complains of the refusal of the court to permit the defendant over objection to prove certain statements alleged to have been made to a witness by Mrs. Jeanette Knight, to the effect that the car in question belonged to her brother from whom she had borrowed it; special grounds 5 and 6 complain that the court erroneously charged the rule that recent possession of stolen property by the defendant may authorize a conviction unless satisfactorily explained; and special ground 8 complains that the court erred in failing to charge correctly this principle of law; special ground 7 complains that the court erred in charging as to the defense of alibi; special ground 9 complains because the court refused to permit a witness for the defense to testify that the defendant told him that the automobile belonged to the girl; and special ground 10 is based on newly discovered evidence of Howard Lee and Mrs. Anne Lee as shown by their affidavit attached thereto, to the effect that on January 22, 1947, they resided at Orlando, Fla. but now live in Atlanta, that on said date the defendant, Jeanette Knight and her brother came to their home in Florida, and that Jeanette Knight stated to Mrs. Lee that the automobile belonged to her. Attached to this ground of the amended motion also is the affidavit of the defendant and his counsel to the effect that failure to discover this evidence prior to the trial was not due to lack of diligence on their part; also the affidavits of Boyd, Clyde, and Elizabeth Johnson as to the good character and credibility of Mr. and Mrs. Lee.

On the hearing the court overruled the motion for new trial as amended and this judgment is assigned as error. 1. The jury was authorized to find that the car was stolen. Immediately thereafter the defendant, along with Jeanette Knight, was frequently seen in and about the car. When he was arrested in Florida he admitted to the officer that the car belonged to him or to his brother who had loaned it to him. As he was being brought back to Atlanta he freely and voluntarily admitted the theft, telling the officer who had him in custody the details as to the time and place of its commission. It is not error to refuse a new trial if the verdict is supported by the evidence. See the many cases cited under the catchwords "Any evidence" in the Code (Ann.), § 70-202. The general grounds of the motion for new trial are without merit.

2. The defendant offered testimony as to certain statements alleged to have been made by Jeanette Knight, tending to establish the possession of the automobile in herself and not in the defendant, and that the presence of the defendant with the automobile was incidental only to his being with her. Special ground 10 of the amended motion for new trial is also partially based on this type of evidence. The same constitutes hearsay evidence, and falls within none of the exceptions to the rule against such evidence. See Code, § 38-301. It is well settled that admissions and confessions by third persons that they committed the crime for which a defendant is on trial are not admissible. See West v. State, 155 Ga. 482 (117 S.E. 380);Bryant v. State, 197 Ga. 642 (9a) (30 S.E.2d 259);Aycock v. State, 188 Ga. 550 (9) (4 S.E.2d 221). True, in the instant case it is not contended that Jeanette Knight confessed to the crime, it being contended that she stated she had possession of the car and gave in explanation a perfectly legal reason therefor and right thereto. However, the reason for the inadmissibility of the evidence is not because it admits the crime for which the defendant is on trial, but because it is hearsay and does not come within any of the exceptions to the rule against such evidence. One of the cases relied upon by counsel for defendant, in support of his position that this type of evidence is admissible, is Howell v. State, 5 Ga. App. 612 (63 S.E. 600). The witness there would have testified that five days after an alleged burglary he saw another person in possession of the stolen property, such person on said occasion trying to sell the property to the witness. The evidence in that case would have gone to what the third person had and what he did, the gist of which was not what he said. What is here said with reference to Howell v. State, supra, may substantially be applied to Brooks v. State, 21 Ga. App. 661 (94 S.E. 810), also relied upon by counsel for defendant. Mr. Justice Atkinson, speaking for the Supreme Court in Bryant v. State,197 Ga. 655-657 (9) (supra), treats comprehensively and at length on this subject. In division 9 of the decision in Aycock v. State, supra, the exclusion of such testimony is put on the rule against hearsay evidence. (See cases there cited.) Special ground 4 and so much of special ground 10 as seeks a new trial on this class of inadmissible evidence are without merit.

3. The court charged the jury in connection with the rule that recent possession of stolen property by defendant may authorize a conviction unless satisfactorily explained, as follows: "I charge you in this connection that if you find that an automobile has been stolen, and the property stolen as a result of this crime if recently thereafter should be found in the possession of the defendant, that would be a circumstance from which the jury would be authorized to convict, if they saw fit to do so, unless the defendant should make an explanation of the possession of the stolen property, if you find that he was in possession of that stolen property, consistent with his innocence in the opinion of the jury, all of which are questions for the jury." The evidence authorized the jury to find that the defendant in company with Jeanette Knight was seen in and around the stolen automobile on several occasions immediately after its theft. When he was arrested in Florida he was in company with Jeanette Knight and her brother but he was under the wheel. When interrogated about the automobile he said he was in possession of it but that it belonged to his brother from whom he had borrowed it to make the Florida trip. Shortly thereafter and as he was being returned to Atlanta he confessed to the entire crime detailing the time and place of its commission. Under these facts, in order for this rule to be applied and charged by the court, it was not necessary for the State to show exclusive possession of the stolen property in the defendant. See Cheatham v. State, 57 Ga. App. 858 (197 S.E. 70); McCullough v. State, 57 Ga. App. 863 (2) (197 S.E. 68); Morris v. State, 72 Ga. App. 466 (34 S.E.2d, 46). See also Shaneyfelt v. State, 24 Ga. App. 555 (101 S.E. 592); Coe v. State, 37 Ga. App. 82 (138 S.E. 919);Haney v. State, 47 Ga. App. 132 (2) (169 S.E. 771);Shivers v. State, 50 Ga. App. 419 (178 S.E. 399); Murphy v. State, 68 Ga. App. 111 (22 S.E.2d 184). The charge of the court is a substantially correct statement of the rule that recent possession of stolen property by a defendant may authorize a conviction unless satisfactorily explained and was authorized under the evidence in the instant case. Grounds 5, 6 and 8 of the amended motion for new trial are without merit.

4. On the trial of the case the defendant put on a number of witnesses tending to show that he was in and around Lawrenceville for the entire day on which the automobile was stolen. The court charged the jury as set out in the 4th headnote of this decision. The charge is alleged to be error because it is contended it instructed the jury to the effect that unless they were satisfied that the defendant was not at the scene of the crime they should convict the defendant, and because it is contended that it instructed the jury that the defense of alibi must be of such a nature that it must show the defendant was not present at the scene of the crime at the time of its commission, it being further contended that the evidence in this case distinctly shows a prior possession of this automobile recently after the crime was committed in a person other than the defendant.

Code § 38-122 provides as follows: "Alibi as a defense involves the impossibility of the accused's presence at the scene of the offense at the time of its commission; and the range of the evidence, in respect to time and place, must be such as reasonably to exclude the possibility of presence." The court is not bound to charge the law of alibi where the evidence in support of this defense is manifestly insufficient, in the absence of timely written request. See Paulk v. State, 8 Ga. App. 704 (2) (70 S.E. 50). On the other hand, a failure to give a charge on alibi is ground for new trial, when in a close case such defense is set up and sustained by the evidence. See Moody v. State, 114 Ga. 449 (40 S.E. 242). Whether it would have been error not to have charged on the defense of alibi at all is not before us. It being urged as a defense, the charge on the subject, if a correct statement of the law, was favorable to the defendant. The charge as given is in substantially the same language as that in Brown v. State, 26 Ga. App. 594 (107 S.E. 173). There this court held that the charge upon the subject of alibi was substantially correct. The second branch of the rule as to alibi was adequately covered by that portion of the court's charge as follows: "Any evidence in the nature of an alibi should be considered by the jury in connection with all other evidence in the case, and if in so doing the jury should entertain a reasonable doubt as to the guilt of the accused, they should give him the benefit of that doubt and acquit him," as required in Brooks v. State,25 Ga. App. 739 (105 S.E. 42), and Henderson v. State,27 Ga. App. 629 (110 S.E. 522), and cases cited. Ground 7 of the amended motion for new trial is without merit.

Special ground 9 of the amended motion for new trial is based upon the refusal of the court to allow Cliff Turner, a witness for the defendant to testify that the defendant stated to him that the car belonged to the girl. This was nothing more than a self-serving declaration. Self-serving declarations are generally in-admissible. It was not a part of the res gestae nor does it otherwise constitute any exception to this general rule. SeeMyers v. State, 97 Ga. 78 (9) (25 S.E. 252); Taylor v.State, 121 Ga. 353 (4) (49 S.E. 303); Pope v. State,42 Ga. App. 680 (6) (157 S.E. 211); Dixon v. State, 116 Ga. 186 (2) (42 S.E. 357).

6. Ground 10 of the amended motion for new trial is partially based on evidence that would be inadmissible, as heretofore discussed in division 2 of this opinion. That part of the newly discovered evidence to the effect that the defendant was in Florida with Jeanette Knight and her brother was admitted by the defendant in his statement and is cumulative. As such it is not sufficient as ground for new trial. See many cases cited under the catchword "Cumulative" in the Code (Ann.), § 70-204.

The evidence authorized the verdict and none of the special assignments discloses error requiring a new trial.

Judgment affirmed. MacIntyre, P. J., and Gardner, J.,concur.