Cuthbert v. State

• Decision Date: 11 February 1908
• Docket Number: (No. 926.)
• Parties: CUTHBERT . v. STATE.
• Court: Georgia Court of Appeals

60 S.E. 322

3 Ga.App. 600

CUTHBERT .

v.STATE.

(No. 926.)

Court of Appeals of Georgia.

Feb. 11, 1908.

Burglary—Evidence—Possession of Stolen Property.

The recent, absolute, and unexplained possession of property stolen from a house proved to have been burglarized may be sufficient to authorize a conviction of burglary; but the presumption of guilt arising from proof of such facts is not one of law.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 8, Burglary, §§ 104-107.]

(Syllabus by the Court.)

Error from Superior Court, Chatham County; P. E. Seabrook, Judge.

John Cuthbert was convicted of burglary, and brings error. Reversed.

Wm. W. Gordon, Jr., for plaintiff in error.

W. W. Osborne, Sol. Gen., for the State.

HILL, C. J. John Cuthbert was convicted of the crime of burglary. On the trial of the case the evidence clearly established the com-mission of the offense of burglary, and the further fact that from the house burglarized there were stolen a suit of clothes, a pair of suspenders, and razors. The evidence relied upon by the state was that on the day after the commission of the burglary the defendant was in possession of the suit of clothes which had been stolen from the house when burglarized the night before. This possession of the defendant, it is claimed, being unexplained by him, was sufficient to authorize a conviction. On this controlling question in the case, the court charged the jury as follows: "If the state satisfies you that on the day named in the indictment in this county, in the manner and form therein alleged, this house was burglarized, and from it certain goods were taken, and if you find that recently thereafter this defendant was found in the possession of those goods or any portion of them, the law puts upon him the burden of accounting for such possession, not beyond a reasonable doubt, but to the reasonable satisfaction of the jury, and, in the absence of an explanation satisfactory to the jury, it is a circumstance which the law considers sufficient to justify the assumption that he is the thief." The latter part of this charge, to wit, "it is a circumstance which the law considers sufficient to justify the assumption that he is the thief, " is assigned as error, in that "it authorized the jury to assume that the defendant was the thief from that one circumstance, the rule of law being that recent possession of stolen goods is but a circumstance for the jury to consider, and is not conclusive of guilt."

Of course, it is well settled that the exclusive and unexplained possession of stolen property recently after a theft or after burglary in the commission of which a theft was perpetrated may raise a presumption of fact that the party in possession is the thief or burglar, and would be sufficient as a basis of conviction where the larceny or burglary had been established beyond a reasonable doubt. But this portion of the charge went further than merely allowing the jury the right to draw an inference of guilt from the fact of unexplained and recent possession of the stolen property, and instructed them that the law from this circumstance assumed the existence of guilt. We do not think that a party can be adjudged guilty of larceny or burglary as a matter of law upon proof that property has been stolen, and recently thereafter found in his possession, of which possession he fails to make a reasonable explanation. Such proof shows a strong probability of guilt, but it is for the jury to determine its force after due consideration of all the facts and circumstances which affect its probative value, such as the length of time that has elapsed between the taking and the possession, the nature and character of the property, and to determine from all these facts and circumstances the question of guilt; but the court can never, however conclusive the presumption of fact may be, direct the jury as matter of law that such facts, circumstances, or inferences are sufficient to convict. This exact question has been considered by many courts and text-writers, and the conclusion is uniform that the presumption of guilt which arises from the possession of stolen property recently after the larceny does not, in the absence of any explanation, create a presumption of law of the guilt of the possessor, but simply one of fact, to be passed upon and determined by the jury.

Pollock, C. B., in the case of Reg. v. Lang-mead, reported in 9 Cox's Criminal Cases, 464, on this subject, lays down the rule as follows: "It is a presumption of fact, and not an implication of law, from evidence of recent possession of stolen property unaccounted for, whether the offense of stealing has been committed." Greenleaf, in his invaluable treatise, says: "The presumption, being not conclusive, but disputable, is to be dealt with by the jury alone as a mere inference of fact." 3 Greenleaf on Ev. (15th Ed.) § 31. Wharton, Criminal Evidence (8th Ed.) § 758, states, that this presumption, while it has frequently been declared to be a presumption of law, is really an inference of fact, and that the court may properly tell the jury that the possession by the party of stolen goods is a fact from which his complicity in the larceny may be inferred. "It is purely an inference of fact to be dealt with by the jury, and not one of law to be applied by the court." Graves v. State,...