Opinion
6 Div. 386.
April 22, 1969.
Appeal from the Circuit Court, Jefferson County, Wallace C. Gibson, J.
Arthur Parker, Birmingham, for appellant.
Venue in a prosecution for buying, receiving or concealing stolen property is in the County where the property is recovered only, unless it is proved that the defendant had made an agreement to buy, receive, or conceal the property before it was stolen in another county. Code 1940, Title 15, § 98; Sledge v. State, 40 Ala. App. 671, 122 So.2d 165. It is a violation of a defendant's rights under the Fifth Amendment to the United States Constitution for the trial court to charge the jury as to inferences of guilt which may be drawn from the unexplained possession of stolen property. Amendment v. United States Constitution; Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
Where the question of venue was not raised in the trial court before the argument of the case was concluded, it cannot be raised upon appeal. Circuit Court Rule 35, Code, Tit. 7, 1036; May v. State, 22 Ala. App. 239, 114 So. 423; Payne v. State, 40 Ala. App. 493, 115 So.2d 670. When property is stolen in one county and carried into another, the jurisdiction is in either county. Code 1940, Title 15, § 98. The possession of stolen property places the burden upon the defendant to explain it, and his guilt may be inferred from such possession. Ellis v. State, 43 Ala. App. 157, 182 So.2d 910; McFarling v. State, 35 Ala. App. 191, 45 So.2d 322.
This is an appeal from a conviction of buying, receiving or concealing stolen property, etc., in violation of Section 338, Title 14, Code 1940. The punishment imposed was six years in the penitentiary.
At the close of the State's evidence in chief the defense counsel moved to exclude the evidence. The motion is as follows:
"Judge, for the record, may I, at this time, move to exclude the State's evidence as to the indictment and to each count thereof, separately and severally, that the corpus delicti has not been proved, that, generally, it has not been proved, that there is no evidence which tends to connect this defendant with the commission of an offense."
This motion did not raise the question of the sufficiency of the evidence to prove venue. Rule 35, Title 7, Code 1940, Appendix; Simmons v. State, 36 Ala. App. 36, 53 So.2d 398; Britton v. State, 15 Ala. App. 584, 74 So. 721.
The trial court charged the jury as follows:
"Now, gentlemen, it is the settled law of this state that the recent possession of stolen property, that is, possession shortly after the property is stolen, imposes on the possessor the onus, or burden, of making a reasonable explanation of his possession, and, if he fails to make a reasonable explanation of his possession that would be sufficient to support a conviction."
The following cases serve to illustrate our view that the defendant's exception to this portion of the court's oral charge was well taken. Odom v. State, 44 Ala. App. 534, 215 So.2d 596; Orr v. State, 107 Ala. 35, 18 So. 142; Coats v. State, 257 Ala. 406, 60 So.2d 261.
The judgment is reversed and the cause remanded.
Reversed and remanded.