Opinion
36431.
DECIDED NOVEMBER 19, 1956.
Larceny from the house. Before Judge Paschall. Whitfield Superior Court. July 31, 1956.
Pittman, Kinney Pope, for plaintiff in error.
1. The testimony of the prosecutor that the property stolen from him had been kept, prior to its theft, locked in his tool house just south of his house in the county of venue, is sufficient to authorize the jury to find that the place broken into by the thief belonged to the prosecutor as alleged in the indictment, there being no evidence to the contrary.
2. The inconsistent statements made by the defendant and his subsequent offer to plead guilty at the time he disclosed the whereabouts of the stolen property constituted sufficient evidence that the property which had been in his recent possession was stolen by him.
DECIDED NOVEMBER 19, 1956.
Tom Caldwell was indicted, tried and convicted in Whitfield Superior Court for the offense of larceny from the house. The evidence was in substance as follows: The defendant had previously lived on the premises of the prosecuting witness, Jesse Brock, but moved away a year or so before. Brock owned a one-man and a two-man Mall power saw which were in his tool house on Saturday, February 12, and were missed on Tuesday, February 15. On noticing that the saws had been taken away, Brock made various inquiries which resulted in the arrest of the defendant. Witnesses for the State testified as to four occasions when the defendant had attempted to sell or pawn 2 power saws. One of these placed the date when he was approached as a Monday night about the middle of February. Another witness saw the equipment in the back of a pick-up truck, and testified that it consisted of one one-man and one two-man saw which the defendant told him were Mall saws. A third witness saw the pickup truck and another person in it at the time the defendant approached him about buying some saws. In each case the defendant came to the people who were not acquainted with him and told a story about returning from cutting pulpwood or cedar-wood in Tennessee and needing money to make repairs on his truck.
When arrested, Caldwell first denied any knowledge of the saws. Eventually he stated that he was willing to plead guilty before the judge and to take the owner to the place where the saws were located, which latter he in fact did, and the property was recovered by his direction. The defendant stated to the jury that he was not guilty, but that on a Monday morning he did go with one John Runyan, not otherwise identified, at Runyan's request and in his truck to help him sell some power saws. A witness in his behalf testified that he saw a man in a pick-up truck on which some saws were loaded come to the defendant's yard, and that after a conversation the defendant left with the other man.
Upon conviction the defendant moved for a new trial, and the denial of this motion is assigned as error.
1. It is contended by the plaintiff in error, under the general grounds of his motion for new trial, that the State failed to prove the allegation of the indictment that the saws were taken from "the storage house of Jesse Brock." Brock's testimony was that the saws were kept locked in his tool shed just south of his house, in the county of venue. There was no evidence that the tool shed was owned or used by another, as in Evans v. State, 60 Ga. App. 597 ( 4 S.E.2d 502), cited by the plaintiff in error. The testimony was sufficient to show that the lawful possession of both the property and the tool house were in the person named as owner.
2. The plaintiff in error further contends under the general grounds of his motion for new trial that the conviction is unauthorized for the reason that the defendant's possession of the recently stolen property is equally consistent with his innocence as with his guilt. The defendant's contention on the trial of the case was that he went with another person at his request to help him sell saws which he believed belonged to such other person. There is uncontradicted testimony that he did leave with another person who had saws in a truck. His motive in leaving, and in attempting to sell the saws, might however be consistent with either innocence or guilt. The jury was fully authorized to infer from the testimony of the State's witnesses that it was consistent with guilt rather than innocence; that he attempted to sell the property as his own and not that of another; that to justify the sale he told a story of going north to saw pulpwood and having his truck break down; that he had not been in Tennessee selling pulpwood and did not own a truck; and that he further stated on one occasion that he was willing to plead guilty to the offense. These contradictions, in addition to the defendant's possession of the recently stolen property, authorized the inference of his guilt. Godbee v. State, 58 Ga. App. 412 ( 198 S.E. 800).
Accordingly, the trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.