Opinion
36926.
DECIDED JANUARY 16, 1958.
Receiving stolen goods. Before Judge Harrison. Chatham Superior Court. September 16, 1957.
Ralph L. Crawford, for plaintiff in error.
Andrew J. Ryan, Jr., Solicitor-General, Sylvan A. Garfunkel, James F. Glass, Jack E. Usher, Assistant Solicitors-General, contra.
Where there is direct as well as circumstantial evidence involved in a case, in the absence of a timely written request, it is not reversible error for the court to refuse to charge the law of circumstantial evidence.
DECIDED JANUARY 16, 1958.
The defendant was indicted by the grand jury of Chatham County and convicted of knowingly receiving stolen goods as follows: Twelve (Phillip's) tires of the value of $651.24. The defendant filed a motion for new trial on the statutory grounds and thereafter added two special grounds. The trial court denied the motion, and error is assigned here on this judgment.
The evidence shows substantially that someone burglarized the storehouse of the Monarch Oil Company; that the burglary was committed sometime during the night of December 26, 1956, between the time the employees closed the storehouse and the time they returned to work the next morning; that the burglary was perpetrated by throwing a large piece of concrete through a window. The police officers began a search for the missing tires and on April 16, 1957 the officers located twelve tires of the same dimensions and description as the tires which were missing from the storehouse of the Monarch Oil Company. The tires in question were found located in the dwelling house of the defendant. The paper wrapping had been removed from the tires. The Monarch Oil Company did not remove the paper wrapping from the tires before they were stolen. The defendant occupied a room (described as a living-room) and at the back of this room was a room where the tires were found, with no wooden door between the two rooms, just a curtain covering the doorway. The room where the tires were found had an outside door. There was nothing else in the room where the tires were found except dirty linen and paper. When the officers located the tires in the home of the defendant a police officer testified that the defendant told him "she didn't know anything about the tires, that some man brought them there . . ." Another police officer testified that she said that the only thing she knew about the tires was that some man left them there and she didn't know the man. During the trial the defendant made a statement that she rented part of the house to some man, that when the police officers asked her the name of the man at the time of the arrest, she was so upset and sick she could not remember his name but that she looked at a receipt book and found that his name was Joe Brown.
1. Regarding the general grounds, counsel for the defendant call our attention to Bird v. State, 72 Ga. App. 843 (4) ( 35 S.E.2d 483) and in connection therewith proceeded under the theory that recent possession of goods charged to have been stolen is applicable only to the possession of stolen property. Counsel for the defendant thus argues that the State is proceeding under the wrong theory. Counsel for the defendant is correct in that such principle of law is not applicable to the charge of knowingly receiving stolen goods. We find nothing in the instant case to indicate that the State proceeded on that theory. The evidence discloses that immediately upon discovery of the burglary the police officers began a search for the stolen tires and finally located the exact number of tires, of the exact type, size, make, and description of the tires the Monarch Oil Company had lost by burglary from its storehouse in December. Counsel for the defendant contends that since the serial numbers of the tires were not shown in the trial of the case and since the exact kind of tires was sold by other tire dealers, that these particular tires could have come from some place other than the storehouse of the Monarch Oil Company. This seems to furnish a constrained construction under all the facts and circumstances of this case. There is nothing in the record to show that any other similar tires were reported missing or stolen from any other place of business. It must be kept in mind that the police officers did not locate these tires until April 16, 1957, and when they took up the matter of the tires being in the residence of the defendant, she stated to the police officers that she knew nothing about them being there. Viewing the evidence as a whole the statutory grounds are without merit.
2. Special ground 1 assigns error because it is contended that the court erred in refusing to give the following written request to charge: "While recent possession of stolen goods unexplained will justify a conviction for larceny, the mere possession of goods several months subsequent to the time they were alleged to have been stolen and a failure to satisfactorily account for such possession will not alone authorize a conviction." The court properly refused this requested charge because under all the facts and circumstances of this case such excerpt is not applicable. In Austin v. State, 89 Ga. App. 866 ( 81 S.E.2d 508) this court said: "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." It must be kept in mind that the tires in question in the instant case were found in a residence, not in a place of business, and ostensibly the tires had remained in the residence for over one and one-half months. The question of the lapse of time is a question for the jury, under all the facts and circumstances involved under the record. See Walden v. State, 83 Ga. App. 231 ( 63 S.E.2d 232). This special ground is not meritorious.
3. Special ground 2 assigns error because it is contended that the court erred in failing to charge on the law of circumstantial evidence. In the first place, the evidence in the instant case is not wholly circumstantial. It is the law of this State that if there is any direct as well as circumstantial evidence to support a conviction, it is not reversible error for the court to fail to charge on the principle of law of circumstantial evidence. In McNabb v. State, 44 Ga. App. 306 ( 161 S.E. 369) this court said: "One is presumed to intend the natural consequences of his acts, and there being direct evidence that the defendant possessed tools commonly used for the commission of burglary and safe-cracking, . . . and only the intent having to be inferred, the trial judge, in the absence of a timely request, was not required to charge the law of circumstantial evidence." This special ground shows no cause for reversal.
The court did not err in any of the rulings.
Judgment affirmed. Townsend and Carlisle, JJ., concur.