McChargue v. State , 209 Ga. App. 612 ( 1993 )

Cooper, Judge.

Appellant was convicted by a jury of theft by taking and appeals from the judgment entered on the verdict.

The evidence reflects that on June 24, 1992, the victim went to his boat shed to get his lawn mower and discovered that several of his fishing rods and reels were missing from his rod box. The victim reported the stolen items to the police and a report was filed. Within the next couple of days, the victim drove to a local pawn shop where he found the missing rods and reels. The owner of the pawn shop told the victim that appellant had brought the items in and received money for them. A witness for the State testified that he knew appellant as the brother of a friend of his. The witness stated that on June 24, he saw appellant walking along the side of the road and offered him a ride. Appellant had some fishing rods with him and told the witness that he wanted to go to a pawn shop. The witness took appellant to the pawn shop, and appellant took the fishing equipment inside and came out with money. Appellant testified at trial that he found the fishing rods by the side of the road and took them to a pawn shop because he needed the money.

Appellant contends that the trial court erred in not charging the jury in accordance with OCGA § 24-4-6 that “[t]o 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.” We have held that “[a] trial judge, even in the absence of a request, must charge the jury on the law set forth in [OCGA § 24-4-6] in those cases, which are wholly dependent on circumstantial evidence, [cit.]. . . .” Henderson v. State, 200 Ga. App. 200, 201 (2) (407 SE2d 448) (1991). Furthermore, the Supreme Court of Georgia has held that a charge on the law of circumstantial evidence must be given if requested where the State’s case depends in whole or in part on circumstantial evidence. See Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) (1991). The State’s evidence of appellant’s guilt was wholly circumstantial. The trial court’s charge as relates to circumstantial evidence was as follows: “Evidence may also be used to prove a fact by inference. This is referred to as circumstantial evidence. Circumstantial evidence is the proof of facts or circumstances from direct evidence from which you may infer other related or connected facts which are reasonable and justified in the light of your experience.”

The record also reflects that at a later point in the charge, the trial court charged the jury that if they should find that the crime of theft by taking had been committed, and if the defendant were found in recent possession of the stolen property, that would be a circumstance along with all the other evidence from which the jury could infer guilt “unless there should be from the evidence a reasonable explanation of the possession of such property consistent with a plea of innocence which is a question solely for you, the jury, to determine.” We cannot conclude, as does the dissent, that the charge given by the trial court was a sufficient restatement of OCGA § 24-4-6. Nor can we conclude, as the State urges, that there was only one reasonable explanation for appellant’s possession of the fishing rods inasmuch as appellant testified that he found the fishing rods by the side of the road. The jury was not adequately instructed that the State’s circumstantial evidence of guilt should “exclude every other reasonable hypothesis save that of the guilt of the accused.” Consequently, we hold that the trial judge’s failure to charge OCGA § 24-4-6 is reversible error and appellant is entitled to a new trial.

In light of our reversal, it is unnecessary to address appellant’s remaining enumerations of error.

Judgment reversed.

McMurray, P. J., Birdsong, P. J., Andrews and Smith, JJ., concur. Pope, C. J., and Blackburn, J., concur specially. Beasley, P. J., dissents. Johnson, J., not participating.