Austin v. State

Full title: AUSTIN v. THE STATE

Court: Court of Appeals of Georgia

Date published: Feb 17, 1954

81 S.E.2d 508 (Ga. Ct. App. 1954)

81 S.E.2d 508

Opinion

35020.

DECIDED FEBRUARY 17, 1954. REHEARING DENIED MARCH 5, 1954.

Receiving stolen property. Before Judge Shaw. Fulton Superior Court. December 3, 1953.

Wesley R. Asinof, Howard, Howard, Slaton Holt, for plaintiff in error.

Paul Webb, Solicitor-General, Charlie O. Murphy, William E. Spence, contra.

1. A statement by a defendant to a witness, during the investigation of a case, that he committed the act upon which the offense is predicated at a certain geographically located spot, plus the testimony of the witness that such spot is in the county of the court taking jurisdiction of the case, is sufficient proof of venue where there are no circumstances tending to prove that the venue was in fact in some other county.

2. Although, on a charge of knowingly receiving stolen property, mere proof of possession, even though in the absence of an explanation thereof, is not enough evidence to support a verdict of guilty, yet such possession, coupled with facts and circumstances from which knowledge may be inferred, that the property so received was stolen, is sufficient to support the verdict.

DECIDED FEBRUARY 17, 1954 — REHEARING DENIED MARCH 5, 1954.

Calvin Austin was indicted and tried in the Superior Court of Fulton County under an indictment charging him, in the first count, with larceny of an automobile and, in the second count, with receiving stolen goods. The defendant was acquitted on the first and convicted on the second count. The evidence, construed in its light most favorable to the verdict, was substantially as follows: that on May 28, 1953, an automobile was stolen from Jack Kimsey in Fulton County, and on June 10, 1953, it was located in the defendant's possession in Canton, Cherokee County, Georgia; that the defendant was an automobile mechanic; that the automobile at the time it was recovered had had the serial number removed and the motor number changed; that the defendant stated at the time of his arrest that he had borrowed the automobile from one Gene Wyatt of West End, but that the police officers made inquiries of such person in the neighborhood and he was not known there, nor did the defendant know how to get in touch with him; that, in his statement to the jury, the defendant made a contradictory statement to the effect that Wyatt had left the car with him for the purpose of having work done on it, although he had agreed to let him use it during the time. Officer Freeman of the Georgia Bureau of Investigation testified that the defendant, when questioned as to where he had received the automobile from Wyatt, told him that he was coming from Austell towards Atlanta across the bridge on Gordon Road, and received it on "this side of the river," which point, the officer testified, would be in Fulton County.

The defendant after conviction filed a motion for new trial on the general grounds, and later amended it by adding one special ground relating to venue. The denial of this motion is assigned as error.

TOWNSEND, J.

1. A statement by a defendant to a witness, during the investigation of a case, that he committed the offense for which he is later put on trial at a certain geographically located spot, plus the sworn testimony of the witness on the trial that such spot is in the county of the court taking jurisdiction of the case, is sufficient proof of venue, where there are no circumstances tending to prove that the venue was in fact in some other county. Dowdell v. State, 200 Ga. 775 (1) ( 38 S.E.2d 780); Davis v. State, 66 Ga. App. 877 (4) ( 19 S.E.2d 543). The only circumstances from which a contrary inference here might be drawn are the facts that the defendant and the automobile were found in Cherokee County, and that, while the automobile was, according to the uncontradicted evidence, stolen in Fulton County, the defendant was acquitted of the charge of larceny. These facts, however, do not raise any presumption that the automobile might have been received in Cherokee County, any more than in Fulton County, where it was stolen, or in Cobb County, at a point on the other side of the river from that pointed out by the defendant as the spot he had in fact received it. Accordingly, it must be held that venue was sufficiently proved.

2. The essential ingredients of the offense of receiving stolen goods under Code §§ 26-2620 and 26-2621 are set forth in Suggs v. State, 59 Ga. App. 394 ( 1 S.E.2d 39), as follows: "(1) that the accused bought or received the goods, (2) that the goods had been stolen by some person other than the accused, (3) that at the time of so doing the accused knew the same had been stolen, (4) that in so doing he acted with criminal intent." The accused was found in possession of the automobile, and admitted that it had been turned over to him. This car had been stolen from the prosecuting witness for the State. The jury here acquitted the defendant of the charge of larceny, from which it follows that it was stolen by another than himself. The remaining questions, then, are: whether the defendant received the automobile knowing it to have been stolen, and whether he did so with criminal intent. On a charge of receiving stolen goods, as distinguished from a charge of larceny, mere proof that the goods have been stolen does not authorize a verdict of guilty, and the rule of possession of recently stolen goods is not sufficient to infer guilt even in the absence of an explanation of such possession. Bird v. State, 72 Ga. App. 843 ( 35 S.E.2d 483). Knowledge and intent, however, being peculiarly subjective, may be inferred from circumstances. A charge as follows: "If they were received under such circumstances as would cause him to reasonably believe that the goods were stolen, then, under the law, you would be authorized to convict," was approved in Birdsong v. State, 120 Ga. 850 (3) ( 48 S.E. 329). As to what circumstances may be considered, these include contradictory statements by the defendant, as well as facts which the jury might find sufficient to excite the suspicions of the defendant as a reasonable man. Arkwright v. State, 57 Ga. App. 221 ( 194 S.E. 876). The defendant first said that a friend had lent him the automobile, but neither he nor an independent investigation disclosed anything tending to show the existence of this person. The defendant later said that the car had been left with him to have repairs made. This contradictory statement on his part, coupled with the apparent nonexistence of the person from whom he contended he got the car, the place where he said he received it, and other circumstances, authorized the jury to find that the defendant received the automobile knowing it to have been stolen.

The trial court did not err in denying the motion for a new trial as amended.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.