Fortson v. State , 69 Ga. App. 378 ( 1943 )

1. There was no request to charge. The court did not commit reversible error in failing to charge more fully on the law of circumstantial evidence.

2. The rule stated in Hampton v. State, 6 Ga. App. 778 (65 S.E. 816), and Gibbs v. State, 8 Ga. App. 107 (68 S.E. 742), that a jury can not arbitrarily disregard testimony of a witness which is wholly unimpeached, uncontradicted, and in no way discredited, is not applicable in the instant case, for all the witnesses introduced by the defendant to explain his recent possession of a part of the stolen goods contradicted a statement made by him before his trial, in a material matter, and two of the witnesses contradicted each other as to another material matter.

3. It was a jury question whether or not the recent possession of a part of the stolen property was satisfactorily explained. The verdict of guilty, which has the approval of the trial judge, will not be disturbed.

DECIDED APRIL 29, 1943. The testimony was that on or about August 27, 1942, a wheel, tire, and hub cap were stolen from a 1939-model, V-8 Ford automobile, which was the property of Mr. Rucker. The wheel was later found abandoned in a gulley. The tire was never found. On or about October ____, 1942, a policeman with a search warrant went to the house occupied by the defendant, Fortson. In a closet next to the fireplace in one of the rooms in the house he found a hub cap behind the cardboard ceiling which separated the closet from the chimney. Part of this cardboard was loose and the hub cap was over behind it. The hub cap had a nickel-plated center with a red painted band around the outside. Another policeman testified that he made a search of the premises of the defendant on October ____, 1942, and that under the house and behind some planks he found concealed a wheel belonging to a Plymouth automobile. He further testified that the defendant "told him at that time that he [the defendant] had lived in the house since the 1st of August." The hub cap in question was identified by the owner, Mr. Rucker, who testified that he had never seen another one like it. Another witness testified that he was familiar with the hub cap of Mr. Rucker that was alleged to have been stolen, and that he had never seen another hub cap like it in Elberton, the town in which the theft had occurred.

Four witnesses for the defendant testified that in the latter part of September, 1942, they went with the defendant to a house "to which he was fixing to move, for the purpose of helping him to clean the house and yard preparatory to moving. That two of them went into the house to clean up and the two others remained in the yard for the purpose of cleaning up." One of the defendant's witnesses, Sylvester Hall, who went into the house to clean up, testified that he found a hub cap which he described as follows: "It was sticking between the chimney in the ceiling in the closet. It was a hub cap with a bright center and red all around it. It was just like the hub cap on the wheel in front of me now [the hub cap in question]. I saw other hub caps around the yard." The defendant's other witness, Rucker, who went into the house to clean up, testified: "I found an automobile hub cap on the floor in the closet next to the chimney. It was laying on the floor. I called George Milton [the defendant] and told him I had found the hub cap and asked him what to do with it. Sylvester Hall came in there and saw it. George Milton said it was not his and just to leave it there. He didn't come in to see it. I just left it where I found it. It was a large hub cap with a round bright center and a red band on the outside. It was just exactly like the hub cap on the automobile wheel you show me [the hub cap in question]. I know it was the last week in September, 1942." The other two witnesses in the yard swore that it was the latter part of September when they went down to clean up the premises and they were not present when the hub-cap was found, but heard the other witnesses call to the defendant that the hub cap had been found and asked the defendant what they must do with it; that the defendant replied that it was not his and to just leave it where it was; that the defendant, who was not present in the room at the time said hub cap was found, did not go to see the hub cap when they told him that they had found it. All four of the defendant's witnesses said that it was the latter part of September, 1942, and that defendant had not moved into the house but was cleaning it preparatory to moving therein.

The defendant denied his guilt. He stated that he did not live in the house during August, 1942, and only moved there the last week in September. He further stated: "I was fixing to move to the house on Martin Street where this hub cap was found. I got Early Mattox, Sylvester Hall, Johnnie Pope Rucker, and Willie Edwin Wilson to go down there with me one day about the last of September to clean up the place. While Sylvester Hall and I were in one room, Johnnie Pope Rucker called from the adjoining room that he had found an automobile hub cap in the closet and asked me what to do with it. I told him that it was not mine and just to leave it there. It was a hub cap just like the one shown me here and had a nickleplated center with the red band on the outside. I do not know anything about the wheel he found under the house and never saw it. It was not mine. I know nothing about who the hub cap belonged to or how it got in the house, but it was there before I moved there." Thus, two of the witnesses introduced by the defendant to explain his possession of the stolen hub cap, contradicted each other as to where the hub cap was found. A witness for the State testified that the defendant had told him that he had moved into the house on August 1, 1942. This statement by the defendant was in direct conflict with the testimony of the four witnesses, who testified that the hub cap was in the house before the defendant moved therein. 1. The pressure in the instant case is not whether the crime was committed, but whether the defendant was the person who committed it, for the defendant's guilt of simple larceny is wholly dependent upon the inference arising from the recent possession of a part of the property stolen. The judge fully and fairly charged the law of reasonable doubt, and among other things told the jury not to convict if, after considering the evidence and the defendant's statement, their minds were wavering, unsettled, or not satisfied. He instructed them that they had the right to believe the defendant's statement in preference to the sworn testimony in the case; that he entered the trial with the presumption of innocence in his favor and that this presumption remained until the State rebutted it by proof. He instructed them fully and fairly with reference to the effect of the possession of property recently stolen as the rule related to connecting the defendant with the crime of simple larceny; and thereafter charged as follows: "But to do this, [to convict the defendant] the jury must be convinced from other evidence than the possession that the offense charged has been committed, and the whole evidence taken together must leave no other reasonable hypothesis than that the defendant is guilty." "To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused." Code, § 38-109. "Whether dependent upon positive or circumstantial evidence, the true question in criminal cases is, not whether it be possible that the conclusion at which the evidence points may be false, but whether there is sufficient evidence to satisfy the mind and conscience beyond a reasonable doubt." § 38-110.

The defendant excepted to the charge of the court, "For the reason that the trial judge failed to charge the jury sufficiently upon the law of circumstantial evidence, and that the case for the State depended solely upon circumstantial evidence in that the prosecution was dependent solely upon the circumstance of his alleged possession of recently stolen articles, only part of which was alleged to have been found in his possession." There was no request to charge, and we do not think the judge committed reversible error in failing to charge more fully on the law of circumstantial evidence. Smith v.State, 63 Ga. 168 (16); Simmons v. State, 85 Ga. 224,228 (11 S.E. 555); Moughon v. State, 57 Ga. 102, 107;Thompson v. State, 166 Ga. 512 (12) (143 S.E. 896);Young v. State, 95 Ga. 456 (20 S.E. 270); Bush v.State, 23 Ga. App. 126 (97 S.E. 554).

2. The statements of the defendant's witnesses, Sylvester Hall and Rucker, were in conflict as to where they found the alleged stolen hub cap in the house the defendant was preparing to "move into" as his residence. The statements of all of the defendant's witnesses that the hub cap was in the house before the defendant moved therein were in conflict with the defendant's statement to a State's witness that he had moved into the house in question on August 1, 1942, which was before the time that said witnesses testified that the hub cap was found therein. Thus the rule, as stated in Hampton v. State, and Gibbs v. State, supra, that the jury is forbidden to arbitrarily disregard testimony which is wholly unimpeached, not contradicted, and in no way discredited, is not applicable, but the case comes within the general rule as set out in Morris v. State, 47 Ga. App. 792 (171 S.E. 555), to wit: "Where on the trial of one charged with larceny 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 would authorize the jury to infer that the accused was guilty, unless he explained his possession to their satisfaction." See also Mitchem v. State,53 Ga. App. 280 (185 S.E. 367); Long v. State, 62 Ga. App. 775 (9 S.E.2d 845); Lankford v. Holton, 187 Ga. 94,102 (200 S.E. 243). These conflicts and the other circumstances connected with the case authorized the jury to say that the explanation as to his recent possession of the stolen hub cap was not satisfactory. The verdict of guilty having been approved by the judge, this court will not interfere with his discretion in refusing to grant a new trial.

3. The evidence authorized the verdict.

Judgment affirmed. Broyles, C. J., and Gardner, J., concur.