Horton v. State, 26943

• Citation: 187 S.E.2d 677,228 Ga. 690
• Decision Date: 11 February 1972
• Docket Number: No. 26943,26943
• Parties: Johnny Larry HORTON v. The STATE.
• Court: Georgia Supreme Court

Page 677

187 S.E.2d 677

228 Ga. 690

Johnny Larry HORTON v. The STATE.

No. 26943.

Supreme Court of Georgia.

Feb. 11, 1972.

Rehearing Denied Feb. 28, 1972.

Syllabus by the Court

1. The trial court properly charged that the possession of recently stolen goods, unaccounted for, raises an inference that the possessor is the one who stole the goods, unless he makes an explanation of his possession consistent with his innocence. Such charge was not a comment on appellant's failure to testify or to make a statement.

2. Under the circumstances, appellant's right to have the jury kept together was waived when he consented to their dispersal on two of the three nights during the trial.

3. During the trial, one of the jurors revealed that he had earlier heard a State's witness discuss the case. The court did not err in failing to excuse the juror, or, in the alternative, to declare a mistrial, since appellant, through his counsel, waived any objection to the juror, and made no motion for a mistrial.

4. To show bad character, the State produced two witnesses at the pre-sentence hearing who testified that appellant had committed an earlier robbery. To permit this testimony was error, since it was concerned purely with a specific act, rather than with appellant's general reputation in the community.

5. Appellant's motion for new trial on the general grounds was properly denied as the verdict of guilty was supported by the evidence.

Glenn Zell, Atlanta, for appellant.

Lewis R. Slaton, Dist. Atty., Joel M. Feldman, James H. Mobley, Jr., Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, W. Hensell Harris, Jr., Asst. Attys. Gen., Atlanta, for appellee.

ALMAND, Chief Justice.

The appellant, Johnny Larry Horton, was indicted by the grand jury of Fulton County on charges of armed robbery and motor vehicle theft. He was tried before a jury, which found him guilty of both charges, and fixed his punishment at 20 years imprisonment for the armed robbery and 5 years for the theft of the vehicle. The trial court denied appellant's motion for a new trial, as amended, and he appeals from that order.

1. Appellant enumerates as error number 1 a portion of the court's charge to the jury, as follows: '. . . I charge you that if a crime should be committed as charged in this indictment, that is to say, a theft of a motor vehicle, and recently thereafter the defendant should be found in possession of the stolen property, the property stolen as a result of such a crime, that that would be a circumstance from which you, the jury, would be authorized to infer guilt, if you saw fit to do so, unless the defendant should make an explanation of his possession of the stolen property, if you find that he did have possession of it, consistent with his innocence, all of which, of course, are questions of fact for you, the jury, to determine, ladies and gentlemen.'

Appellant contends that, as he did not testify in his own behalf at the trial, this charge amounted to an impermissible comment by the court on his silence, in violation of his rights under the 5th and 14th Amendments to the United States Constitution.

This contention is without merit. The evidence adduced on the trial of the case showed that an automobile, stolen the same day, was used as the 'get-away car' in a bank robbery; that police officers chased the car until it wrecked; and that four men, including the appellant, ran from the car and were arrested by police. 'The possession of recently stolen goods, unaccounted for, raises an inference that the possessor is the one who stole the goods, and if the accused does not want this inference to arise in his case, he must account for his possession. Bryan v. State, 62 Ga. 179; Lundy v. State, 71 Ga. 360; Mathews v. State, 103 Ga.App. 743(2), 120 S.E.2d 359.' Aiken v. State, 226 Ga. 840, 844, 178 S.E.2d 202, 205.

Charges on this rule of law, in language similar to that complained of here, have been approved many times by the appellate courts of this State. Aiken v. State, supra; Scott v. State, 122 Ga. 138, 50 S.E. 49; Lewis v. State, 120 Ga. 508, 48 S.E. 227; Rutland v. State, 90 Ga. 102, 15 S.E. 813; Harrison v. State, 74 Ga. 801; Taylor v. State, 118 Ga.App. 605, 164 S.E.2d 876; Mathews v. State, 103 Ga.App. 743, 120 S.E.2d 359; Walden v. State, 83 Ga.App. 231, 63 S.E.2d 232.

As stated in Aiken v. State, supra, p. 845, 178 S.E.2d p. 206: 'It was not erroneous to charge this principle, where the evidence showed the possession of stolen property, even though the appellant did not account for his possession by evidence or by statement. Trammell v. State, 183 Ga. 711, 715, 189 S.E. 529. The charge can not properly be construed as being a comment on the appellants's failure to testify or make a statement.'

2. The transcript shows that the jury was permitted by the trial court to disperse overnight on three occasions. At the conclusion of the first day of the trial, the court excused the jury after conferring at the bench with counsel for appellant and for the State, but the subject matter of that conference is not a part of the record. On the second day, the court, in the absence of the jury, inquired of appellant and of his counsel if they objected to the jury dispersing for the night, and they stated that they did not. On the third day, the court permitted the jury to disperse, but the record does not show that he first conferred with appellant or his counsel or asked if they objected.

Appellant enumerates as error number 3 the first and third dispersals of the jury, which, he claims, were without his consent or that of his counsel.

After appellant filed his notice of appeal, the district attorney filed a petition in the trial court seeking permission to supplement the record by the addition of an affidavit. After hearing, the petition was granted, and the following affidavit was transmitted to this court:

'Personally appeared before the undersigned officer duly authorized to administer oaths, Stanley P. Herndon, Esq., who, first being duly sworn on oath and says:

'1. That said Stanley P. Herndon, Esq., was defense counsel at the trial of Johnny Larry Horton in his trial of the above styled case.

'2. That he did in fact consent in behalf of Johnny Larry Horton to have the jury disburse (sic) overnight on two occasions and did not object to said disbursement (sic).'

Unfortunately, we cannot tell from the affidavit which two of the three dispersals were with the consent of appellant's counsel. If he had specified the first and the third, we could consider the matter at an end, but since the affidavit is ambiguous, we are compelled to treat at least one of the overnight dispersals as being without the consent of appellant.

'The law requires that a jury in a criminal case be kept together until the conclusion of the trial (Berry v. State, 10 Ga. 511, 512(9)), unless counsel for both the State and the accused agree otherwise (Buttersworth v. State, 200 Ga. 13(1), 36 S.E.2d 301; Hannah v. State, 212 Ga. 313, 319, 92 S.E.2d 89).' Atlanta Newspapers v. State of Ga., 216 Ga. 399, 404, 116 S.E.2d 580, 584.

The State argues that appellant's right to have the jury kept together was waived or lost by his failure to object seasonably to their dispersal. This is the ruling of the courts in some jurisdictions. See 21 A.L.R.2d 1123. In fact, Georgia is listed in this annotation as recognizing this rule, although we do not agree that the case cited, Johnson v. State, 75 Ga.App. 186, 43 S.E.2d 119, should be so read.

We would be hesitant to apply such a rule unless it is shown that the defendant in a criminal trial had an opportunity, outside the hearing of the jury, to object, and that he did not. Otherwise, he might be forced to object in the presence of the jury, and this could create in the minds of the jurors the impression that they would be free to return to their homes, but for the insistence of the defendant. A criminal defendant should not be placed in a situation where, by his objection to their dispersal, he engenders a feeling of animosity or resentment among the jurors. Mitchell v. State, 41 Ga. 527.

Having made these cautionary statements, we are of the opinion that in the instant case a waiver clearly is shown, for the reason that on two of the three nights during the trial, permission for the dispersal of the jury was granted by appellant or by his counsel. If such consent was granted with respect to the first and second nights, the trial court was fully justified in following the same procedure on the third night. On the other hand, if such consent was granted with...