Opinion
30664.
DECIDED NOVEMBER 16, 1944.
Certiorari; from Fulton superior court — Judge Hendrix. August 15, 1944.
James R. Venable, Frank A. Bowers, Jackson L. Barwick, for plaintiff in error.
Lindley W. Camp, solicitor, John A. Boykin, solicitor-general, Guy Tyler, Durwood T. Pye, contra.
1. Ordinarily hearsay testimony alone is without probative value and this is true whether admitted with or without objection. Eastlick v. Southern Railway Co., 116 Ga. 48 ( 42 S.E. 499).
2. "It is the general rule that `while recent possession of stolen goods unexplained will justify a conviction for larceny, the mere possession of goods several months subsequent to the time they were alleged to have been stolen and a failure to satisfactorily account for such possession will not alone authorize a conviction,' and `in all cases where such possession [of stolen property] is relied on to establish guilt, it must either be shown to have been recent, or else it must be strengthened by other evidence.'" Harper v. State, 60 Ga. App. 684 ( 4 S.E.2d 734).
3. The State can not impeach its own witness. However, it is permitted to disprove facts testified to by one of its witnesses.
4. Excluding the hearsay testimony, the legal evidence is not sufficient to authorize the verdict of guilty.
DECIDED NOVEMBER 16, 1944.
Paul Nesbit was charged with the larceny of two axes. He was convicted, his motion for a new trial was overruled, and he excepted. The entire testimony was as follows: Lt. Petty, sworn for the State, testified as follows: "Judge, this boy Paul Nesbit came to me and told me that he pawned two axes, and that Cliff Martin gave him the two axes, and I found them in the pawnshop pawned in Paul Nesbit's name. This Cliff Martin told me that Paul took two of the axes and he took one." C. A. White, another witness for the State, stated: "My name is C. A. White of 122 Decatur Street, and I work for the King Hardware Company. Judge Wood [McClelland], these axes and this ax here belonged to King Hardware Company." White further testified: "I do not know who got the axes. I did not see anyone get the axes. I don't know when the axes were missing." Clifford Martin, sworn for the State, testified: "I went and got these axes, and I let Paul Nesbit have them to pawn. It is not true that I got these axes and pawned them myself and Paul was not with me. I had been with Paul that day out on the job. It is true that I am now in the chain-gang serving sentence about stealing some chickens. As to whether it is true that I am serving a sentence about these axes — I am serving twelve months." The defendant made the following statement: "Judge, your honor, Clifford Martin gave me two axes to pawn, which he had three, and told me he had some trees to cut down at Scottdale, where he lived, Monday morning. He told me to pawn these two axes for him; that he would get them out Saturday so he could go to work Monday morning with them. Judge, your honor, I did not know the axes were stolen, and if I would have knowed they were stolen I would have pawned them in his name and not mine; and after I found out and learned they were stolen I got hold of him and had him arrested. Then they turned it over to the detectives. Then the next night he sent them out to my house — said I took two and he took one. He was mad with me because I told on him after I learned the two axes were stolen."
The testimony of the officer showed that the defendant came to the officer (and not that the officer went to him) and told the officer that he had pawned two axes; that Cliff Martin gave him the two axes; and that the officers found the axes in the pawnshop pawned in the defendant's name. Clifford Martin, the other witness for the State, testified: "I went and got those axes and let Paul Nesbit, the defendant, pawn them." The State can not impeach its own witness. However, the State is permitted to disprove the facts testified to by its witnesses. The fact that Cliff Martin told the officer that the defendant took two of the axes and he took one, it not being shown that this statement was made in the presence of the defendant, was hearsay evidence and of no probative value. The defendant denied his guilt and stated that, "after I found out and learned that they [the axes] were stolen, I got hold of him [Martin] and had him arrested, . . then the next night he sent the detectives out to my house — said I took two and he took one. He was mad with me because I told on him after I learned the two axes were stolen." Also it might be well to note that it does not appear that the possession of the defendant was recent possession. Possession which is not recent, is only a circumstance which may be considered along with other circumstances in determining the guilt or innocence of the accused, and is not sufficient alone to establish his guilt. Harper v. State, supra. In all cases where possession of stolen property is relied on to establish guilt, either possession must be shown to have been recent after the property was alleged to have been stolen, or it must be strengthened by other evidence. Turner v. State, 114 Ga. 45, 48 ( 39 S.E. 863). The rule relied upon by the State in McAfee v. State, 68 Ga. 823, is based on proof of recent possession, whereas, in the instant case, we find no evidence in the record that possession of the stolen property was recent. The judge of the superior court erred in overruling and denying the certiorari.
Judgment reversed. Broyles, C. J., and Gardner, J., concur.