Opinion
7 Div. 514.
February 5, 1929.
Appeal from De Kalb County Court; E. M. Baker, Judge.
Baxter Gilbreath was convicted of petit larceny, and he appeals. Reversed and remanded.
The original affidavit, upon which the prosecution was begun, is as follows:
"Before me, E. M. Baker, judge of the De Kalb county court, of said county, personally appeared A. B. Clayton, who, being duly sworn, deposes and says that he has probable cause for believing, and does believe, that within twelve months before making this affidavit, and in said county, Baxter Gilbreath feloniously took and carried away one horse collar, the personal property of A. B. Clayton, of the value of five dollars.
"Affiant further charges that within twelve months before making this affidavit, in said county, Baxter Gilbreath feloniously took and carried away one horse collar, the personal property of A. B. Clayton, of the value of four dollars, against the peace and dignity of the state of Alabama."
To count 2 of the affidavit defendant demurred upon the grounds (1) that no offense is charged; (2) that the charge as averred is without probable cause; and (3) that it is not shown that affiant had probable cause for believing said offense had been committed by defendant. The solicitor amended as follows:
"Comes the state and amends the complaint, after demurrers have been sustained to the second count thereof, and says:
"The state of Alabama by its solicitor complains of the defendant, Baxter Gilbreath, that within twelve months before the commencement of this prosecution the said Baxter Gilbreath feloniously took and carried away one horse collar of the value of four dollars, the personal property of A. B. Clayton, against the peace and dignity of the state of Alabama."
Defendant moved to strike the amended complaint upon the grounds (1) that the state is without authority to proceed on said amended complaint as to such second count; (2) that the complaint as made by the solicitor, without affidavit, is insufficient to charge this defendant with said offense; (3) that said charge as made is not founded on probable cause; and (4) that the solicitor is without authority of law to so amend a defective complaint. Motion to strike was overruled.
C. A. Wolfes, of Ft. Payne, for appellant.
Count 2 of the affidavit being insufficient, and demurrer thereto sustained, there was no authority for the solicitor's statement without first having a charge supported by affidavit. Horn v. State, 22 Ala. App. 459, 117 So. 283. As the possession of stolen property must be recently after the theft, the excepted to portions of the court's oral charge were erroneous. Maynard v. State, 46 Ala. 85; Henderson v. State, 70 Ala. 23, 45 Am. Rep. 72; White v. State, 72 Ala. 195; Gray v. State, 19 Ala. App. 315, 97 So. 124.
Charlie C. McCall, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
It was permissible for the solicitor to cure any defect in the original affidavit by filing a statement as is provided in section 3835 of the Code of 1923. A sufficient statement of the facts as shown by the record as a basis for the ruling here made is as follows:
In February, 1928, Mr. Clayton had two horse collars stolen from his shed. About the middle of May of the same year one of these collars was found on a mule then being plowed by defendant. There was other evidence bearing on the case not necessary here to mention. The court charged the jury:
"If you believe that these collars were stolen from Mr. Clayton, and if either was found in the possession of this defendant, then we have a rule of law which can be applied in this case, and that is, if property that has been stolen and if that property is found in the possession of any one, then the burden is upon that person to make to the jury a satisfactory explanation of his possession of the stolen property."
"So in this case, if you believe these collars were stolen and were found in the possession of this defendant, the burden is upon him to make to you an explanation which seems to you a satisfactory explanation of his possession of these collars, and if he fails to make to you a satisfactory explanation then the very fact that one was found in his possession would be sufficient upon which to base a conviction in this case."
Possession of stolen goods by the person accused, even though unexplained and exclusive does not authorize the inference of his guilt, unless it is also recent, or soon after the commission of the offense; and while the word "recent," in this connection, is not capable of exact definition, and always varies within a certain range, with the conditions of each particular case, and while there may be cases in which the court is authorized as matter of law to pronounce the possession recent, yet the question is one of fact for the jury and a charge which ignores it or withdraws it from their consideration is erroneous. White v. State, 72 Ala. 195; Thomas v. State, 109 Ala. 27, 19 So. 403.
Other questions presented will probably not arise on another trial. The judgment is reversed and the cause is remanded.
Reversed and remanded.