Buckles v. State, 1 Div. 731

• Citation: 291 Ala. 352,280 So.2d 814
• Decision Date: 07 September 1972
• Docket Number: 1 Div. 731
• Parties: In re James BUCKLES v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
• Court: Supreme Court of Alabama

Page 814

280 So.2d 814

291 Ala. 352

In re James BUCKLES v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

1 Div. 731.

Supreme Court of Alabama.

Sept. 7, 1972.

Rehearing Denied Sept. 29, 1972.

Defendant was convicted in the Circuit Court, Mobile County, Bowling, J., of buying, receiving, concealing, or aiding in concealing stolen property, and he appealed. The Court of Criminal Appeals, 50 Ala.App. 548, 280 So.2d 810, reversed and remanded, and the State's petition for certiorari was granted. The Supreme Court, McCall, J., held that the challenged instruction regarding unexplained possession of recently stolen property was not reversibly erroneous.

Judgment of Court of Criminal Appeals reversed and case remanded to that court.

On remand, 50 Ala.App. 552, 280 So.2d 820, the Court of Criminal Appeals reversed and remanded.

On rehearing of a petition for certiorari, 291 Ala. 352, the Supreme Court set aside its original opinion, set aside judgment, and affirmed judgment of Court of Criminal Appeals.

William J. Baxley, Atty.Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.

Thomas M. Haas, J.D. Quinlivan, Jr., Mobile, for respondent.

McCALL, Justice.

We granted the State's petition for a writ of certiorari to review and reverse a decision of the Court of Criminal Appeals wherein that court held that when a defendant is being tried on charges of buying, receiving, concealing, or aiding in concealing stolen property, in violation of Tit. 14, § 338, Code of Alabama, 1940, it is misleading and reversible error for the trial court to orally charge the jury in the following manner:

" 'Now, we have another statement in 36 Ala.App. 703 , Hoggle v. State, which may be somewhat less involved; Judge Carr states that principle in this manner: "It has long been the rule in this jurisdiction that recent possession of stolen property by the accused places upon him the burden of explaining this possession and if he fails to make a reasonable explanation; an inference of guilt may support a conviction."

" ' * * * I'm not going to tell you that that would create a presumption of his guilt, because it does not do it. But I am telling you that if he is found in the recent, unexplained possession of stolen goods, that would support an inference of his guilt in the burglary. * * * ' "

The opinion of the lower court does not explain in what particulars the charge was erroneous and misleading. The court's authority appears to be Reed v. State, 47 Ala.App. 617, 259 So.2d 304. In that case the appellant had been convicted of buying and receiving stolen property. The court held it was error for the trial court to have given this charge:

" 'If you are convinced beyond all reasonable doubt by the evidence that the property was stolen and further that the defendant was in possession of the property then the defendant has the burden of going forward with the evidence and explaining his possession of the property. This pertains to the charge of receiving and concealing stolen property and the reasonableness of his explanation is for you to determine in passing on the question of his guilt or innocence. If you determine that his explanation is reasonable, then of course the defendant should be acquitted but if you determine that his explanation is not reasonable, then you would be authorized to infer that the defendant knew that the property was stolen and that he did not intend to return it to the owner. Again this does not mean that the burden of proving the guilt of the defendant beyond all reasonable doubt is removed from the State. That is an area of law that I wanted to go into with you.' "

The above charge may also be criticized because it omits "recently" or some other equivalent word and also omits "unexplained," in order to describe the defendant's possession.

The Court of Criminal Appeals noted that in Boyd v. State, 150 Ala. 101, 43 So. 204, this court said:

" * * * The burden of proof is on the state, on the issue of larceny vel non, to establish beyond a reasonable doubt that the property involved was taken or appropriated animo furandi, which includes a taking or appropriation without the consent of the owner. * * * The recent possession of stolen property casts on the defendant the onus of explaining his possession, and, if he fails to make a reasonable explanation, a presumption of guilt arises which will support a conviction. * * * "

While the court used the phrase "a presumption of guilt," our later cases use the term, "inference of guilt."

We think on authority of Underwood v. State, 72 Ala. 220, Orr v. State, 107 Ala. 35, 18 So. 142, and Coats v. State, 257 Ala. 406, 60 So.2d 261, there was no error in charging the jury as the trial court did in the instant case.

In Underwood v. State, 72 Ala. 220, the appellant appealed his larceny conviction and there we stated:

"The recent, actual, unexplained possession of stolen goods, is a fact from which the jury may infer the complicity of the defendant in the larceny. Whether it is sufficient evidence of guilt, is a question for their determination. There may be cases in which it would stand alone, unconnected with any other criminating fact, and from it the jury would not probably infer guilt. Whether the inference is just and reasonable--whether the fact satisfies the minds of the jury as reasonable men, beyond all reasonable doubt, of the guilt of the accused--the court can not determine. * * * " Id. at 222.

The unexplained possession, described in the above statement of law, looks to and calls on the possessor for an explanation of how he came by the recently stolen goods, for otherwise, an inference arises out of an incriminating circumstance from which the accused may be found guilty and convicted. That is the clear meaning of this statement. This court in Orr v. State, 107 Ala. 35, 39, 18 So. 142, another case involving a larceny conviction, reiterated the rule of Underwood, supra. We said:

"The unexplained possession of property does not raise the presumption that the property was stolen. There must be other evidence of the corpus delicti. When this has been shown, and the stolen property, soon after the offense, is found in possession of a person who is unable to give a satisfactory explanation of his possession, then the jury are authorized to infer his guilt. * * * "

However the following statement is also found in Orr, supra, at 38-39, 18 So. at 143:

" * * * It is only in cases where the possession is 'recent' after the larceny, that the law authorizes a presumption of guilt. * * * "

Such inconsistency prompted Chief Justice Livingston to write in Coats v. State, 257 Ala. 406, 407, 60 So.2d 261, 262:

" * * * It seems that care has not been taken in all the cases to differentiate a presumption of guilt arising from that situation [the unexplained possession of goods recently stolen] and an inference which the jury is justified in drawing on account of it. * * * "

In Hale v. State, 45 Ala.App. 97, 225 So.2d 787, the court's opinion quotes Black's Law Dictionary, Fourth Edition, as follows:

" 'A "presumption" and an "inference" are not the same thing, a presumption being a deduction which the law requires a trier of facts to make, an inference being a deduction which the trier may or may not make, according to his own conclusions; a presumption is mandatory, an inference, permissible. Cross v. Passumpsic Fibre Leather Co., 90 Vt. 397, 98 A. 1010, 1014; Joyce v. Missouri & Kansas Telephone Co., Mo.App., 211 S.W. 900, 901.' "

Thus, the jury is not required to apply a presumption of guilt from the incriminating evidence. Guilt remains an issue, but the jury is free to draw an inference of complicity in the crime from the evidence of unexplained possession of recently stolen property. It is a permissible evidentiary rule that comes into operation after the state produces the required proof.

The appellant in Coats v. State, supra, was convicted of possessing a still. During his argument, the prosecution asked the jury, " 'Has his possession of that part of the still been explained to you sufficiently?' " In discussing the propriety of the solicitor's remark, this court observed that Tit. 29, § 132, Code of Alabama, 1940, makes the unexplained possession of a still prima facie evidence of a violation of law. The court, in writing to that point said:

" * * * There are several situations in legal procedure whereby the defendant in a criminal case must explain them to be consistent with his innocence, and sometimes the law places upon the defendant the burden of proving some defense when the law itself puts such burden upon the defendant as when he pleads not guilty by reason of insanity. It has never been supposed that such legal requirement infringes any constitutional right of the defendant. The burden of proof on the State is legal not constitutional and is subject to change by law.

"This theory is illustrated in the law of larceny, as follows: 'the "unexplained" recent possession of stolen property that authorizes the inference of guilt. Whether the explanation offered is credible or satisfactory is a question for the jury.' Orr v. State, 107 Ala. 35, 18 So. 142, 143. It is sometimes stated that such unexplained possession is prima facie evidence of guilt, and it is very often stated that the unexplained possession of recently stolen goods raises a presumption of guilt. But in the Orr case it was observed that the safest rule, and that of the best considered cases, is to leave it to the jury to say whether the unexplained possession of goods recently stolen satisfies them of the guilt of the defendant. * * * " (Emphasis added.) Coats, supra, 257 Ala. at 407, 60 So.2d at 261-262.

The only reasonable conclusion to be deduced from the above examination of our cases is that they stand for the proposition that, in a larceny case, when the corpus delicti has been established, and it has been shown that the accused was in...