Murray v. State

• Decision Date: 18 January 1922
• Docket Number: 12827.
• Parties: MURRAY v. STATE.
• Court: Georgia Court of Appeals

110 S.E. 418

28 Ga.App. 101

MURRAY v. STATE.

No. 12827.

Court of Appeals of Georgia, First Division

January 18, 1922

Syllabus by the Court.

The judge, having given in charge to the jury the language of the Penal Code as to circumstantial evidence (Pen. Code 1910, §§ 1009, 1010), did not err, in the absence of a proper and timely written request, in failing to charge more fully on that subject. Seats v. State, 122 Ga. 173(3), 50 S.E. 65; McNaughton v. State, 136 Ga. 614(5), 71 S.E. 1038; White v. State, 25 Ga.App. 426, 103 S.E 742.

It was not error harmful to the defendant for the court to charge as follows: "If you find from the evidence, or the defendant's statement, that the contentions of the defendant are true, you should acquit the defendant."

The judge did not err in instructing the jury that "the recent possession of stolen property, unexplained, is a strong circumstance to be considered by them." (Bloodworth, J., dissenting.)

So far as they were legal and pertinent, the requests to charge embodied in grounds 7 and 10 of the motion for a new trial were sufficiently covered by the charge given.

The judge properly refused to give to the jury the requested instructions set out in ground 8 of the motion for a new trial. For him to have told the jury, "If you find in this case that a car stolen from Dr. Mitchell," etc would have been to express or intimate what had been proved and would have been a direct violation of section 1058 of the Penal Code of 1910.

There is no merit in ground 9 of the motion for a new trial, as to the refusal to give requested instructions upon the presumption from possession of stolen property.

For no reason urged at the time of its introduction was all the evidence embodied in ground 11 of the motion for a new trial inadmissible, and it was offered en bloc. Besides, this ground of the motion for a new trial is not complete and understandable without reference to other parts of the record.

Error from Superior Court, Ware County; J. I. Summerall, Judge.

Clyde Murray was convicted of an offense, and he brings error. Affirmed.

James R. Thomas, of Jesup, and Parker & Parker, of Waycross, for plaintiff in error.

A. B Spence, Sol. Gen., of Waycross, for the State.

BLOODWORTH J.

The third headnote only will be discussed. In connection therewith, the following is the opinion of the majority of the court:

"In Cuthbert v. State, 3 Ga.App. 600, 60 S.E. 322; Gravitt v. State, 114 Ga. 842, 40 S.E. 1003, 88 Am.St.Rep. 63; and Harris v. State, 18 Ga.App. 710(2), 90 S.E. 370--the charge excepted to in each case was materially different from the charge complained of in this case. In the Cuthbert Case and in each of the other cases referred to the charge was to the effect that the presumption of guilt arising from the unexplained recent possession of stolen property was a presumption of law, whereas it is only a presumption of fact to be passed upon and determined by the jury; but in the instant case the jury were clearly told that the presumption was only one of fact, to be passed on by them, and was not one of law. It is true that in the beginning of his charge on the question of recent possession the judge did say that the

recent unexplained possession of stolen property 'is a strong circumstance to be considered by the jury,' but this was merely a statement (and a true statement) of an abstract principle of law. When the court got down to the facts of the case he charged only that such possession was a 'circumstance' to be considered by them and which authorized them to find the defendant guilty."

The excerpt from the charge discussed in the foregoing opinion of the majority of the court is as follows:

"I charge you that the recent possession of stolen property, unexplained, is a strong circumstance to be considered by the jury. It raises no presumption of guilt as a matter of law."

The writer thinks that in thus charging the jury the judge committed reversible error. Let it be borne in mind that the word "recent," as used in connection with the presumption arising from possession of stolen goods, is a relative term, and not capable of exact or precise definition, and varies within a certain range with the conditions of each particular case, and is usually a question of fact for the jury; and a time which might be construed as recent under one state of facts would not be so under another and different state of facts. See White v. State, 72 Ala. 195, 200; Jenkins v. State, 62 Wis. 49, 21 N.W. 232, 238. See, in this connection, Pool v. Warren County, 123 Ga. 205 (2), 206, 51 S.E. 328. The exception to the excerpt from the charge heretofore quoted is as follows:

"Movant shows that said charge was erroneous and was exceedingly harmful to the accused, in that the use of the word 'strong' unduly impressed the jury with the presumption arising from the possession of stolen property, and amounted to an expression of OPINION as to the weight of such presumption, and that said charge took from the jury the right to determine the weight of the presumption that arises from the possession of stolen property, which differs in different cases and depends on many circumstances, all of which are to be considered by the jury and determined by it. Said charge was error because it was for the jury to say whether in this particular case the presumption arising from the possession of stolen property was a weak presumption or a strong presumption against the defendant. This error was not corrected, cured, or relieved by any part of the general charge."

The writer thinks that this excerpt from the charge is subject to the criticism lodged against it.

In Mill v. State, 2 Ga.App. 398 (2), 58 S.E. 673, the following general principle was announced:

"The only appropriate charge in a criminal case on the subject of the weight of evidence is the fundamental principle that the state is required to prove the guilt of the accused beyond a reasonable doubt."

It is easy to see how the learned judge who presided in the trial of the present case was led into error by expressions found in reported cases of this court, the Supreme Court, and other courts. In Gravitt v. State, 114 Ga. 842, 40 S.E. 1003, 88 Am.St.Rep. 63, the Supreme Court, quoting from Jones v. State, 105 Ga. 650, 31 S.E. 575, said:

"It is true that the possession of goods stolen at the time of the commission of a burglary is but a circumstance. If it is recent, it is, when unexplained, a very strong circumstance tending to show the guilt of the possessor, and it is sufficient to put the burden of explaining the possession on the person charged with the offense." (Italics mine.)

In the Jones Case, on page 651 of 105 Ga., on page 575 of 31 S. E., Mr. Justice Little said:

"As we have seen, such possession is but a circumstance, and the jury should have been so told, and further properly charged that the weight to be given to this circumstance depended upon the nature of the property, how recently it had been stolen, and such other principles of law as illustrated the value of the evidence."

This court, in Harris v. State, 18 Ga.App. 712 (2), 90 S.E. 371, said:

"Recent possession of stolen goods, unexplained, is a strong circumstance to be considered by the jury, but raises no presumption of guilt as a matter of law." (Italics mine.)

See, also, Cuthbert v. State, 3 Ga.App. 602, 60 S.E. 322.

But it is frequently true that the language used in the opinion of a reviewing court is not appropriate for use by a judge in...