Opinion
40936.
DECIDED SEPTEMBER 22, 1964. REHEARING DENIED OCTOBER 9, 1964.
Larceny of automobile. Franklin Superior Court. Before Judge Skelton.
E. C. Stark, Marshall L. Allison, for plaintiff in error.
Clete D. Johnson, Solicitor General, William Hall, contra.
In a prosecution for larceny, when there is evidence that the defendant was in possession of the stolen property shortly after the larceny and stated that he bought the property from persons who he did not know and had never seen, and the defendant thereafter before and at the trial stated that he bought the property from a named person whom he had known, the jury was authorized to find that the defendant's explanation of his possession of the stolen property was not satisfactory and to find him guilty.
DECIDED SEPTEMBER 22, 1964 — REHEARING DENIED OCTOBER 9, 1964.
The defendant was indicted for larceny of an automobile, found guilty by the jury, and sentenced for 2 to 3 years. The defendant assigns error on the overruling of his motion for new trial.
The State presented evidence that the prosecutor's automobile was stolen November 28, 1962, and several weeks later (in 1963) the prosecutor identified several parts of the body at the defendant's junk yard. The defendant stated in the presence of the prosecutor, the prosecutor's son, the sheriff, and a GBI agent, when they went to the junk yard on April 25, 1963, that he bought a load of junk containing these and other parts for $5 off a truck from two boys whom he did not know and had never seen before. About six weeks later the defendant went to the jail and told the sheriff that he had just remembered that he had purchased the parts from one Gulley, whom the defendant later stated he had known. Witnesses testified that one of the identified parts, a quarter panel or "fender," would be worth $35 to $40 as junk and $75 or $100 as a replacement part, and that all the parts would be worth $250. A witness had seen acetylene torches, which are used to cut up automobiles, at the defendant's place. The defendant in his unsworn statement at the trial stated that he bought the parts from Gulley, and witnesses for the defendant testified that they were present when the defendant bought the parts (which they had identified) off a truck from Gulley. One of these witnesses was the defendant's brother; the others sometimes worked for the defendant or had helped unload the parts from the truck. As to the time this occurred, however, these witnesses were vague: It was in warm weather; they had met at the junk yard to go fishing. It was sometime in the fall of 1962. One first said it was July or August, then that he didn't remember the date. Others said it was early fall, September or late August.
1. This evidence does not present a case in which the defendant's guilt was wholly dependent upon the inference arising from the defendant's possession of the stolen property shortly after the larceny, and the possession, as a matter of law, was explained by unimpeached, uncontradicted and undiscredited testimony, and there was no circumstance to supply a reason why the jury did not believe the explanation of possession offered by the defendant. The conflict between the defendant's first statement that he acquired the property from unknown persons whom he had never seen before, and his later statements before the trial and his statement and the testimony of his witnesses at the trial, and the other circumstances in evidence, authorized the jury to find that the defendant's explanation of his possession of the stolen property was not satisfactory. Stewart v. State, 17 Ga. App. 827 ( 88 S.E. 715); Tate v. State, 47 Ga. App. 784, 786 ( 171 S.E. 557); Moxley v. State, 62 Ga. App. 512, 514 ( 8 S.E.2d 699); Parker v. State, 63 Ga. App. 249 ( 10 S.E.2d 720). Accord Gibbs v. State, 8 Ga. App. 107, 108 ( 68 S.E. 742); 52 CJS 935, § 110.
2. The trial court's charge on the subject of admissions by a criminal defendant was not error. Timbs v. State, 71 Ga. App. 141 ( 30 S.E.2d 290).
The trial court did not err in overruling the motion for new trial.
Judgment affirmed. Nichols, P. J., and Russell, J., concur.