Opinion
64563, 64679.
DECIDED OCTOBER 29, 1982.
Burglary. Thomas Superior Court. Before Judge Horkan.
Walter E. Van Heiningen, for appellants.
H. Lamer Cole, District Attorney, Jim Hardy, Assistant District Attorney, for appellee.
These are separate appeals by two defendants (brothers) who were tried together. In case 64563 the defendant appeals his conviction for burglary. In case 64679, his co-defendant appeals his conviction for burglary and escape. Held:
In each case there is but one enumeration of error, to wit — that a directed verdict for the defendant should have been granted since the evidence failed to show the defendant entered the burglarized premises. See Code Ann. § 26-1601 (CCG § 26-1601, Ga. L. 1968, pp. 1249, 1287, p. 895; as amended through Ga. L. 1980, p. 770).
In this case the proof adduced at the trial was that certain items were unlawfully taken from within the victim's dwelling and were later found in the defendant's possession. "When property alleged to be stolen is proven to be stolen property and the crime charged has been committed by someone, the recent unexplained possession of the stolen property by the defendant is a circumstance from which guilt may be inferred." Humes v. State, 143 Ga. App. 229 ( 237 S.E.2d 704). The contention that such evidence does not show the defendant committed the burglary has been rejected by Selph v. State, 142 Ga. App. 26, 28-29 ( 234 S.E.2d 831), which disapproved the language of Bennett v. State, 136 Ga. App. 806 ( 222 S.E.2d 207). See Wells v. State, 151 Ga. App. 416 (1) ( 260 S.E.2d 374) (overruled as to Division 7 by Copeland v. State, 160 Ga. App. 786, 789 ( 287 S.E.2d 120)); Porter v. State, 155 Ga. App. 883 ( 273 S.E.2d 644); Brown v. State, 157 Ga. App. 473, 474 (1) ( 278 S.E.2d 31); Bankston v. State, 159 Ga. App. 342, 343 (4) ( 283 S.E.2d 319).
The recent Supreme Court decision of Williamson v. State, 248 Ga. 47 ( 281 S.E.2d 512), which affirmed our decision in Williamson v. State, 156 Ga. App. 615 ( 275 S.E.2d 699), considered this matter with regard to the principles of Jackson v. Virginia, 443 U.S. 307 (99 SC 2781, 61 L.Ed.2d 560) and Sandstrom v. Montana, 442 U.S. 510 (99 SC 2450, 61 L.Ed.2d 39), their predecessors and progeny, and determined the present viability of the inference of guilt resulting from proof 1) that the goods in the accused's possession were recently stolen and 2) that someone committed the crime. The court pointed out that where there is no satisfactory explanation of defendant's possession (as determined by the jury) then proof of the above facts beyond a reasonable doubt created a permissible inference of defendant's guilt which is sufficient to authorize a conviction within the requirements of Jackson v. Virginia, 443 U.S. 307, supra.
We, therefore, hold the evidence did not demand a finding for the defendants and the trial judge did not err in denying each of the defendant's motions for directed verdict.
Judgments affirmed. Shulman, P. J., and Carley, J., concur.