Opinion
30781.
DECIDED APRIL 20, 1945. REHEARING DENIED JUNE 6, 1945.
Burglary; from Clayton superior court — Judge Davis. November 10, 1944.
William H. Reynolds, for plaintiff in error.
Roy Leathers, solicitor-general, contra.
There was no error requiring the grant of a new trial in the instructions excepted to (and stated at length in the opinion of the court, infra); and the evidence authorized the verdict.
DECIDED APRIL 20, 1945. REHEARING DENIED JUNE 6, 1945.
The accused was convicted of burglary. He made a motion for a new trial, which was overruled, and he excepted.
There is no contention in the defendant's brief that a burglary had not been committed, but it is strenuously contended that the evidence does not authorize a finding that the defendant committed the particular burglary in question. The evidence as it relates to the identification of the articles alleged to have been stolen at the time of the burglary was to the following effect: Mr. W. L. Adams testified: "My house has been burglarized several times within the past four years. . . That last burglary that I know of was in 1944 — this year. . . My wife and I have recovered some of the articles taken from our house, but not all. . . I was present at the time and place these articles were recovered. They were recovered at the house of Rollie G. Wyatt, the defendant here. I recognize these two gowns which you show me as two of the articles recovered. . . They were recovered at the same time at his house. There was also a dish recovered at the same time. That dish which you show me is the dish that was recovered at the same time from the same place. My wife had a whole set of dishes similar to this. One of them was larger than this and had this corner broken off right here, and my wife had that fixed back, but she bought another dish in the place of that one. That set was full and complete with the exception of this one dish. . . That dish was recovered in the house of Rollie G. Wyatt the day me and my wife went there. . . We lost a guitar from our home about the time other articles of value were taken — my son's guitar. I am pretty sure that is the guitar that you show me because it was a guitar like this, and the reason I think that is it, these places were here and it was a little bit unglued right here. I wouldn't swear to it. I wouldn't lie for the whole case."
His wife testified: "I did have occasion to go with my husband and officer Blalock to make a search of the premises [of Rollie G. Wyatt]. On that occasion I found articles in his house that I recognized as being stuff taken from our home. I haven't seen that dish that you show me since I handed it to the officers, but I can identify it as my dish. I bought that set of dishes at Davison-Paxon's may be three or four years ago. . . The set of dishes just had one of that particular size. It had other odd dishes, but just one dish like that. . . When I found the dish I picked it up and took it to the officer without looking at it any more than picking it up, and I called the date of that old English castle on there. . . These gowns that you show me are my gowns. I didn't buy that one. The other one I bought at Davison-Paxon's. That one the Woman's Auxiliary of the Riverdale Presbyterian Church gave to me four years ago. . . I am certain that was the gown that was given to me. I could not be mistaken. I have worn it. I have no doubt about it. This other gown I bought and liked it so much. It is my favorite gown, and that is what makes me so sure it is mine. It had this little blue on it and was so soft. . . I can't be mistaken about it. . . I found these gowns in the closet of Rollie Wyatt's home."
The defendant made a statement to the jury denying his guilt, and was corroborated by several relatives as to where the gowns in question came from. One witness who was not a relative corroborated his statement in part as to where the dish came from. The jury did not accept the explanation offered by the defendant and his witnesses, and resolved the issue in favor of the State and found the defendant guilty.
1. "If one be found in the recent possession of goods shown to have been stolen from the house at the time of the breaking and entering, such possession is sufficient to connect the person in possession with the perpetration of the offense. But it is not of itself conclusive." Lester v. State, 106 Ga. 371 ( 32 S.E. 335). Mr. Adams and his wife, in the instant case, positively identified the gowns and the dish alleged to have been stolen from their home at the time of the burglary. The jury accepted their testimony, and the recent possession of these articles was sufficient to connect the defendant, the person in possession of them, with the perpetration of the offense. Lewis v. State, 120 Ga. 508 ( 48 S.E. 227); Mangham v. State, 87 Ga. 549 ( 13 S.E. 558). The evidence, therefore, authorized the verdict.
2. Special ground 1. The judge in charging the jury defined burglary, and then charged them in part as follows: "It is charged in this indictment that there was a breaking and entering into the dwelling house of W. L. Adams and that was done with the intent to commit a larceny. Therefore, gentlemen, I will give you the definition of larceny inasmuch as it is charged in the indictment that there was a breaking and entering with intent to commit a larceny. Larceny, under our law, gentlemen, is the wrongful and fraudulent taking and carrying away by any person of the personal goods of another, with the intent to steal the same. It is not charged in this indictment that there was a breaking and entering with intent to commit a felony, but a breaking and entering with intent to commit a larceny, the definition of which I have just given to you. [Now, gentlemen, the essential elements of burglary are that there must have been a breaking and entering of the particular house named in the indictment, in this case it is the dwelling house of W. L. Adams, and that breaking and entering must have been done with the intent to commit a larceny as charged in this indictment.] (I charge you this principle of law, that if you should find from the evidence in the case that the offense which is charged in this indictment, that is, burglary of the house of W. L. Adams, was committed by some one, and that very soon thereafter all or any part of the goods taken therefrom at the time the offense was committed, if the offense of burglary was committed, was shown to have been found recently thereafter in the possession of the defendant now on trial, that such possession, gentlemen, if not satisfactorily explained consistent with the theory of innocence, might raise a presumption of guilt and authorize you to identify the defendant as the guilty party and convict him of the crime as charged, if you believe him guilty from the evidence beyond a reasonable doubt.) Such a presumption of guilt would be one of fact and not one of law, however, and might be rebutted by an explanation of such possession satisfactory to the jury. That is, gentlemen, if one who should be found in recent possession of stolen goods satisfactorily explained that possession, consistent with the theory of innocence, then such possession would create no presumption against the person found in such possession. Now, gentlemen, those matters are issues of fact for you gentlemen to determine from the evidence in the case. Every issue of fact is to be determined by you gentlemen and the court does not express or intimate any opinion as to what the facts are in the case, but expressly charges you that you are to determine from the evidence in the case, including the defendant's statement, what the truth is with reference to every question of fact in the case." Italics, brackets, and parentheses ours. The defendant contends that the use of the italicized words, to wit, in this case it is the dwelling house of W. L. Adams, "is an expression by the court that the State had proved its contention that the house alleged to have been burglarized belonged to W. L. Adams. Movant [defendant] contends that the proper language to have been used in this connection would have been: `In this case it is alleged to have been the dwelling house of W. L. Adams.'"
In the part of the charge above quoted, which is inclosed in brackets and which contains the clause, "in this case it is the dwelling house of W. L. Adams," the court was instructing the jury on what were the essential elements necessary to be proved in order to authorize a verdict of guilty of burglary in the instant case, and, although ineptly expressed, stated in effect that in this case one of the essential elements necessary to be proved was that the particular house named or alleged in the indictment "is the dwelling house of W. L. Adams." The part of the charge subsequent to the excerpt complained of makes it clear that the court was not expressing an opinion that the house was the dwelling house of W. L. Adams, but that an essential element of the crime charged in this case necessary to be proved was that the particular house named in the indictment is the dwelling house of W. L. Adams. When the charge is considered as a whole, we do not think that this verbal inaccuracy was calculated to mislead the jury or to obscure the meaning of the court. Cosby v. Reid, 21 Ga. App. 604, 607 (2) ( 94 S.E. 824); Lazenby v. Citizens Bank, 20 Ga. App. 53, 58 ( 92 S.E. 391); 1 Reid's Branson Instructions to Juries (3d ed.), § 140. No reversible error appears in this special ground of the motion for new trial.
3. Special ground 2. The defendant contends that the court having charged as set forth in the parentheses of the charge above quoted should have elaborated or further charged that on trial of one charged with the crime of burglary, the fact that the goods alleged to have been stolen were found in a room or a house occupied jointly by two persons would not be conclusive evidence that the goods were in the possession of either one of them. In view of the fact that the evidence showed that the defendant and his wife resided together and were the only persons occupying the room in question we think that even if such a charge was adjusted to the evidence it would still have been but an elaboration of the substantial law already given in the general charge, and in the absence of a timely request, the failure to so charge would not have been cause for a new trial. Savannah Electric Co. v. Jackson, 132 Ga. 559, 562 (4) ( 64 S.E. 680). In the instant case the defendant on trial was the husband; he and his wife lived together in the same home; both had been indicted for the burglary in question; and the alleged articles taken at the time of the burglary were found in their home. Under such circumstances, the following rule of law is applicable, that is, the husband is recognized by law as the head of the family and the legal presumption is that the house and all the household effects belong to him as the head of the house. This presumption, of course is rebuttable. Isom v. State, 32 Ga. App. 75 ( 122 S.E. 722). Thus this contention of the defendant is not meritorious. The defendant further contends that this excerpt of the charge was error in that the court failed to elaborate and charged that the goods alleged to have been stolen, if found in a room or house occupied jointly by two persons [the husband and wife], would not be conclusive evidence that they were in the possession of either of them, and that the charge as given was therefore an expression of an opinion that the defendant on trial was in the exclusive possession of the articles. The court charged if one who should be found in the recent possession of stolen goods satisfactorily explains that possession, consistent with the theory of innocence, then such possession would create no presumption against the person found in such possession. There was no request to charge and if the defendant wished an elaboration of the charge on the effect of recent possession, he should have requested it. This exception likewise is not meritorious.
4. Special ground 3. In this case the defendant and his wife, who were jointly indicted for burglary, resided alone in the home where the goods recently stolen were found. "The defendant contends that the failure to qualify the charge on circumstantial evidence and to ignore in the entire charge the fact that the goods alleged to have been stolen were found in a house occupied jointly with him and another person [his wife] was harmful error and one that requires a new trial." "In this State the husband is recognized by law as the head of his family, and where he and his wife reside together, the legal presumption is that the house and all the household effects, . . belong to the husband as the head of the family. This presumption of course is rebuttable." Isom v. State, supra. The following cases hold to the same effect. Young v. State, 22 Ga. App. 111 ( 95 S.E. 478); Hendricks v. State, 24 Ga. App. 56 ( 100 S.E. 55); George v. State, 37 Ga. App. 513 ( 140 S.E. 903). This rule is applicable in the instant case and if the defendant desired a more specific instruction with respect to this particular matter, a timely written request should have been submitted. Western Atlantic R. Co. v. Tate, 129 Ga. 526, 531 ( 59 S.E. 266); Hood v. State, 67 Ga. App. 291 ( 19 S.E.2d 927); Kimbrell v. State, 57 Ga. App. 296 ( 195 S.E. 459). The defendant requests that this court review and overrule the Isom, the Young, the Hendricks, and the George cases. Upon consideration of these cases the request is denied.
Broome v. Davis, 87 Ga. 584 ( 13 S.E. 749), states a ruling of the same nature as the cases decided by this court listed last above, and the defendant in his brief, as provided in the Code, § 24-3645, requests this Court to question or review this decision of the Supreme Court and certify such question to that Court for the purpose of having the same modified or overruled. Upon consideration of this question this request is denied.
The judge did not err in overruling the motion for a new trial.
Judgment affirmed. Broyles, C. J., and Gardner, J., concur.