A charge to effect that the unexplained possession of recently stolen property is a circumstance from which the jury may infer that the defendant is guilty of stealing it, was recently upheld by the Court of Criminal Appeals in Chadwick v. State, 47 Ala. App. 529,258 So.2d 62 (1972). Judge Cates, in concurring with Judge Tyson's opinion for the Court of Criminal Appeals (in that court's original opinion in this cause, 50 Ala. App. 548, 280 So.2d 810), suggests a form for such a charge. It does not directly place a burden on defendant, which we consider to be the vice in the charge in the instant case.
"`Recent possession' must be determined from the facts of each case and may vary from a few days to many months." Buckles v. State, 50 Ala. App. 548, 552, 280 So.2d 810 (1972). We have found no case, and have been cited none, where the term "recently" has been held to render a statute vague and unconstitutional.
" The Supreme Court stated that the informants did not say that they had "recently seen" drugs in the residence, therefore, if the affidavit included that the drugs been recently seen in the residence, the affidavit would have been sufficient. See Buckles v. State, 50 Ala. App. 548, 280 So.2d 810. In the case at bar, "within the last week" incorporates a definite period of time which at the most would mean six days ago. Under these circumstances, we believe that the facts outlined in the affidavit were sufficient to assure the necessary "freshness" of the information.
Nevertheless, there still remained in the oral charge an incorrect instruction, to which an exception was taken and which was left to go to the jury unmodified. The instruction is even stronger in favor of the state than that which was held erroneous by Judge Tyson in Buckles v. State, 50 Ala. App. 548, 280 So.2d 810, aff'd on rehearing, 291 Ala. 359, 280 So.2d 823 in overruling 291 Ala. 352, 280 So.2d 814. In determining whether a particular portion of a court's oral charge to which an exception is duly reserved constitutes reversible error, we are mindful of the established rule of construction that such portion is not to be isolated from the rest of the charge and that all parts of the instructions of the court must be considered together.
Therefore, it is our judgment that the oral charge given by the trial judge was sufficient to inform the jury that it was "the judge of whether or not the property was stolen `recently.'" Buckles v. State, 50 Ala. App. 548, 280 So.2d 810. V
See also, Anno. Stolen Motor Vehicles — Presumptions, 15 A.L.R. Fed. 856, particularly § 5 — effect of passage of time. See Buckles v. State, 50 Ala. App. 548, at 552, 280 So.2d 810. Likewise, relativity is applied to the term "exclusive" sometimes affixed to possession in such cases.
Also see: Goodman v. State, 50 Ala. App. 281, 278 So.2d 729, cert. denied 291 Ala. 780, 278 So.2d 733 (1973). For cases where a subjective allegation as to reliability has been tendered, or where substantiating facts and additional underlying circumstances have been given by the affiant, see: United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971); United States v. Damitz, 495 F.2d 50 (9 Cir., 1974); Funches v. State, 53 Ala. App. 330, 299 So.2d 771, cert. denied 293 Ala. 752, 299 So.2d 778 (1974); Russell v. State, 53 Ala. App. 447, 301 So.2d 214 (1974); Buckles v. State, 50 Ala. App. 548, 280 So.2d 810 (1972). The Circuit Court of Appeals, Fifth Circuit, in United States v. Acosta, 501 F.2d 1330 (1974), held an affidavit to be insufficient for want of facts to enable the magistrate to conclude that the informant was reliable.
We have not insisted that the affiant possess or depose any personal knowledge tending to corroborate the alleged criminal conduct, but only that he attest through underlying facts as to the credibility of the undisclosed informant. Buckles v. State, 50 Ala. App. 548, 280 So.2d 810. This the affiant did, citing "3 arrests in the past 5 months" arising out of previous information furnished by his source. Given this, we hold that the warrant to search the premises at 828 Lowndes Street was based upon probable cause.
TYSON, Judge. The anomaly now presented to this Court is that our reasons for reversal on original deliverance 50 Ala. App. 548, 280 So.2d 810, may not have been specified with sufficient certainty. However, as pointed out in the dissenting opinion of Mr. Justice Bloodworth, the modern authorities, according to the more recent cases, Haynes v. State, 45 Ala. App. 31, 222 So.2d 183 (1969); and Reed v. State, 47 Ala. App. 617, 259 So.2d 304 (1972), have clearly condemned use of the term burden of explaining possession of recently stolen goods inasmuch as to laymen on juries, they might easily confuse such with the lawful requirement of the burden of proof remaining with the State in order to establish the appellant's guilt.