Opinion
34010.
DECIDED APRIL 17, 1952. REHEARING DENIED JULY 31, 1952.
Larceny; from Fulton Superior Court — Judge Moore. January 26, 1952.
Irwin Dyer, for plaintiff in error.
Paul Webb, Solicitor-General, Guerry Thornton, Charlie O. Murphy, contra.
1. There was no error in instructing the jury that they were at the time trying the case only as charged against the defendant on trial, and that the jury was not concerned with the codefendant named in the indictment.
2. A failure to define the word "accomplice" in connection with a charge on corroboration of the testimony of an accomplice, in the absence of request for fuller instructions on this subject, is not error.
3. A failure to charge on circumstantial evidence is not reversible error where the conviction does not depend upon circumstantial evidence alone.
4. The verdict was authorized by the evidence, and having the approval of the trial court, and no error of law appearing, will not be disturbed by this court.
DECIDED APRIL 17, 1952 — REHEARING DENIED JULY 31, 1952.
Alton Weaver was jointly indicted with George W. McElroy, in the Superior Court of Fulton County, for the larceny of an automobile. The defendants elected to sever, and this defendant was convicted. On the trial of the case the evidence in substance was: that the automobile, a 1949 Mercury, was stolen on October 5, 1951, and found by police officers parked on the side of the road that same night with the defendants therein; that the defendants were both intoxicated, and the license plate on the automobile was one which had been taken from a Ford car belonging to a third person; that earlier in the evening the defendants, driving the Mercury, had bought gasoline and cigarettes from the operators of a filling station, and had taken from the trunk compartment a spare tire, which they left as security for the debt, and that the ticket for the purchase was signed "Bob Weaver." The codefendant McElroy testified: that he and the defendant had met at a restaurant and the defendant suggested that they "get" a Cadillac automobile; that they looked for one, but found the Mercury; that they both worked on the switch wiring and succeeded in starting the car; that they bought gas at the filling station and pawned the spare tire in order to do so; that they had been drinking; that they took the license tag from the car, and the witness obtained another tag from a Ford automobile and put it on the Mercury, throwing the original license tag away; that they drove around for some time, and the witness, who was operating the car, pulled over to the side of the road when the motor stalled, at about the time the police officers drove up and arrested them. The defendant in his statement said merely that he had been drinking heavily for about three weeks, and had no recollection of the events preceding his arrest.
1. The first ground of the amended motion for new trial assigns error on the following charge of the court: "Now, gentlemen, this is a joint indictment in which there are two defendants named, but at this time we are trying the case only as charged against Alton Weaver, and you are not concerned with the other defendant named in the indictment," on the ground that the charge was erroneous, and that the testimony of the codefendant and accomplice was not sufficiently corroborated. The charge was correct as a principle of law. See Dedge v. State, 153 Ga. 176 (4) ( 111 S.E. 547); Waller v. State, 164 Ga. 128, 130 ( 138 S.E. 67). The testimony of the accomplice was corroborated by the circumstances of the stolen property being found in the possession of the defendants, and by direct evidence of the filling-station operators that the defendant was driving the automobile with the codefendant and left the spare tire in exchange for purchases. This ground is without merit.
2. Failure to define the word "accomplice" in connection with a charge on this subject is not error in the absence of a request. Hamby v. State, 82 Ga. App. 7 (2) ( 60 S.E.2d 635); Baker v. State, 14 Ga. App. 578 (1) ( 81 S.E. 805). The second ground of the amended motion for new trial is without merit.
3. A failure to charge the provisions of Code § 38-109, to the effect that circumstantial evidence, to warrant a conviction, shall exclude every other reasonable hypothesis save that of the guilt of the accused, will not work a reversal unless the conviction is entirely dependent upon circumstantial evidence. Williams v. State, 196 Ga. 503 (1) ( 26 S.E.2d 926). The testimony of the alleged accomplice here was direct evidence, for which reason this ground is without merit.
4. The fourth special ground, which complains that the court erred in charging on conspiracy, is considered in connection with the general grounds. There is ample evidence supporting the testimony of the witness McElroy, to the effect that the defendants went out with the intention of stealing an automobile, that after locating one they tampered with the ignition switch, threw away the license tag, and stole another which they put on in its place, and thereafter used the car to drive around in. They were arrested while in possession thereof. Recent possession of stolen property, not explained to the satisfaction of the jury, may authorize a conviction. See Cheatham v. State, 57 Ga. App. 858, 860 ( 197 S.E. 70). A conspiracy may be shown by direct or circumstantial evidence. Swain v. State, 74 Ga. App. 391 ( 39 S.E.2d 727). A conviction is further sustainable upon the testimony of an accomplice, corroborated by other testimony, either direct or circumstantial, connecting the accused with the perpetration of the offense and tending to show his participation therein. Hargrove v. State, 125 Ga. 270, 274 ( 54 S.E. 164); Blakely v. State, 78 Ga. App. 282, 291 ( 50 S.E.2d 762). The only explanation offered by the defendant was that he was in such a drunken condition that he had no recollection of the occurrence, and this explanation was not found to be satisfactory by the jury. Voluntary drunkenness is in any case not a legal excuse for crime. Code, § 26-403. The alleged accomplice testified directly as to the conspiracy between himself and the defendant on trial to steal an automobile, and this was borne out by the circumstances connected with the perpetration of the offense.
The trial court did not err in denying the motion for a new trial.
Judgment affirmed. Gardner, P.J., and Carlisle, J., concur.