The petitioner was convicted of motor vehicle theft in the Superior Court of Troup County and sentenced to five years imprisonment; he did not take a direct appeal of the conviction but filed a state habeas corpus petition which was denied, and the Georgia Supreme Court affirmed that denial with two justices dissenting. Byrd v. Hopper, 234 Ga. 248, 215 S.E.2d 251 (1975). The petitioner contends that he was denied due process when the state trial judge charged the jury concerning the effect of his possession of a recent stolen vehicle as follows:
The charge, as given, is the well-established law of this state. See Aiken v. State, 226 Ga. 840 ( 178 S.E.2d 202); Scott v. State, 122 Ga. 138 ( 50 S.E. 49); Pounds v. State, 136 Ga. App. 852 (1, 4) ( 222 S.E.2d 629); Taylor v. State, 118 Ga. App. 605 ( 164 S.E.2d 876); Mathews v. State, 103 Ga. App. 743 (2) ( 120 S.E.2d 359). It has been upheld against attacks that it was an impermissible comment on the defendant's right to remain silent ( Thomas v. State, 237 Ga. 690; Horton v. State, 228 Ga. 690 (1) ( 187 S.E.2d 677); Pounds v. State, 136 Ga. App. 852 (1), supra), and against attacks that it was burden-shifting ( Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251); Jacobs v. Caldwell, 231 Ga. 600 ( 203 S.E.2d 188); Workman v. State, 137 Ga. App. 746 (5) ( 224 S.E.2d 757); Pounds v. State, 136 Ga. App. 852 (4), supra). State v. Moore, 237 Ga. 269 ( 227 S.E.2d 241) does not apply to this case because it was tried before the Moore decision.
This is true without direct proof or other circumstantial evidence that the defendant committed the theft. See in this connection Byrd v. Hopper, 234 Ga. 248, 250 ( 215 S.E.2d 251); Holliday v. State, 23 Ga. App. 400 (1) ( 98 S.E. 386); Tucker v. State, 57 Ga. 503 (2); Rutland v. State, 90 Ga. 102 (1) ( 15 S.E. 813); Dean v. State, 93 Ga. 184, 186 ( 18 S.E. 557); Chubbs v. State, 204 Ga. 762, 764 ( 51 S.E.2d 851); Barlow v. State, 17 Ga. App. 728 (1) ( 88 S.E. 212); Craig v. State, 91 Ga. App. 418 ( 85 S.E.2d 777). While there has been some criticism of charges where the word "presumption" is used rather than "inference" ( Byrd v. Hopper, 234 Ga. 248, 251, supra) and it would be better to use the word "inference" or the words "presumption of fact," we do not have that problem here. To convict a defendant based upon recent possession of stolen goods, it must be shown the goods were stolen and there must be an absence of or an unsatisfactory explanation of that possession. Chubbs v. State, 204 Ga. 762, supra.
(1) (a) While it is the rule in this state that recent unexplained possession of stolen property permits the jury to infer that the accused committed the theft, "it should be emphasized that the recent unexplained possession creates only a permissible inference of guilt of a `presumption of fact,' in terms of Code § 38-113 which the jury may or may not draw." Byrd v. Hopper, 234 Ga. 248, 250-51 ( 215 S.E.2d 251) (1975). "The nearer the possession to the time of the [theft], the stronger will be the inference of guilt; and the question of the result of the lapse of time is for the jury."
This argument raises the question whether sentencing charges on death cases will be reviewed by this court on habeas corpus when not preserved by proper objection. The general rule is that jury charges are not reviewable on habeas, although a charge which is so defective as to render the trial fundamentally unfair is reviewable in habeas corpus proceedings ( Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251) (1975)), even though unobjected to at trial. Parrish v. Hopper, 238 Ga. 468 ( 233 S.E.2d 161) (1977).
It is true that Shoemake v. Whitlock, 226 Ga. 771 ( 177 S.E.2d 677) (1970) stated that jury charges could not be challenged on habeas corpus; but I do not believe that any member of the court thinks that this states the law correctly in all instances. The proper standard allows jury charges to be considered on habeas if their deficiencies rendered the trial fundamentally unfair, as was recognized in Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251) (1975) which modified Shoemake, but stopped short of overruling it. It should be noted that after he failed to obtain relief in this court, Shoemake's writ was granted by the federal district court in a decision plainly spurning any contention that objections to jury charges in a proper case are not cognizable in federal habeas.
This is not a case in which the charge created any presumption of guilt. See Byrd v. Hopper, 234 Ga. 248 ( 215 S.E.2d 251) (1975). Habeas Case No. C 75-1128 A (N. D. Ga. 10-20-75). This enumeration is without merit.
The charge, taken as a whole, left the burden of persuasion on the [Sjtate. (Citations omitted.) Byrd v. Hopper, 234 Ga. 248 , 250-251 (215 SE2d 251 ) (1975). Accordingly, this enumeration fails.
"Whether the charge is fashioned in the language of `inferences' or `presumptions,' the technical import of the charge is the same. . . ." Byrd v. Hopper, 234 Ga. 248, 251 ( 215 S.E.2d 251) (1975); see also Pouncey v. Adams, 206 Ga. App. 126, 128-129 (2) ( 424 S.E.2d 376) (1992). We find that the given charge was appropriate, adjusted to the evidence and would not have left the jury with an erroneous impression.
"Whether the charge is fashioned in the language of `inferences' or `presumptions,' the technical import of the charge is the same." Byrd v. Hopper, 234 Ga. 248, 251 ( 215 S.E.2d 251). This is especially true when the language charged is that of a "permissible inference" and the factual predicate for the permissible inference is clearly set forth to the jury, as was done in this case, so no fair risk exists that the jury could view the charge as pertaining to a presumption of law. Id.