Hale v. State

• Decision Date: 20 May 1969
• Docket Number: 8 Div. 190
• Citation: 45 Ala.App. 97,225 So.2d 787
• Parties: T.C. HALE v. STATE.
• Court: Alabama Court of Appeals

Page 787

225 So.2d 787

45 Ala.App. 97

T.C. HALE v. STATE.

8 Div. 190.

Court of Appeals of Alabama.

May 20, 1969.

Rehearing Denied June 10, 1969.

Clark E. Johnson, Jr., Albertville, for appellant.

MacDonald Gallion, Atty.Gen., and David W. Clark, Asst. Atty. Gen., for the State.

ALMON, Judge.

The appellant was indicted by the Grand Jury of Marshall County on September 22, 1967, for the offense of buying, receiving, concealing, or aiding in concealing stolen property. Upon arraignment, he entered a plea of not guilty. Appellant was tried by a jury, found guilty as charged and sentenced to the State penitentiary for a term of one year and one day.

Appellant subsequently appeared and moved the court to set aside the verdict and grant him a new trial and for grounds for his motion said, inter alia:

That, under the circumstances of this case, the State was under a duty to prove that the defendant knew that the property mentioned in the indictment was stolen and that the evidence in the cause did not sustain the State's burden of proof in that regard.

That the court erred in its oral charge in stating in substance that the burden was on the defendant to explain to the satisfaction of the jury his possession of the alleged recently stolen property.

The first of the above mentioned grounds is without merit under Vacalis v. State, 204 Ala. 345, 86 So. 92; Middleton v. State, 27 Ala.App. 564, 176 So. 613; Milam v. State, 240 Ala. 314, 198 So. 863, which hold that: before there can be a conviction, there must be evidence sufficient to convince the jury, beyond a reasonable doubt, of every material ingredient of the offense charged; and that scienter, one of the elements, may be inferred from the facts and circumstances surrounding the entire transaction.

The only substantial question before this court is whether the trial court erred in giving the following oral charge to the jury:

" * * * if you are further satisfied beyond a reasonable doubt from the evidence in the case that the defendant shortly thereafter was in possession of recently stolen property then a presumption of guilt arises which will support a verdict of conviction unless the evidence in the case raises in the minds of the Jury a reasonable doubt of the defendant's guilt. Now it is the province of the Jury to determine whether or not the defendant's explanation is reasonable and true and whether such explanation raises in the minds of the Jury a reasonable doubt of guilt. Now, if it does raise in your minds a reasonable doubt of his guilt, then, the presumption had been completely overcome and has no force or effect whatsoever."

Price, P.J., writing for this court to the same question in Haynes v. State, 45 Ala.App. 31, 222 So.2d 183, 6 Div. 386, relied on Odom v. State, 44 Ala.App. 534, 215 So.2d 596; Orr v. State, 107 Ala. 35, 18 So. 142; and Coats v. State, 257 Ala. 406, 60 So.2d 261, in holding that the trial court erred in giving the following charge:

"Now, gentlemen, it is the settled law of this state that the recent possession of stolen property, that is, possession shortly after the property is stolen, imposes on the possessor the onus, or burden, of making a reasonable explanation of his possession, and, if he fails to make a reasonable explanation of his possession that would be sufficient to support a conviction."

The charge in the instant case is distinguishable from that given in the Haynes case, supra, in that it continues at length to demonstrate how the burden is met by the defendant and to what extent it is carried by him, conveying to the minds of the jurors the idea that it is left up to them to decide whether the unexplained possession of goods recently stolen satisfies them of the guilt of the defendant. Nevertheless, the charge in question is fraught with the problem recognized in Coats, supra, which prompted Livingston, C.J., to comment as follows:

"This theory is illustrated in the law of larceny, as follows: 'the "unexplained" recent possession of stolen property that authorizes...