dissenting.
Defendant was convicted of theft of a motor vehicle (actually the parts of such vehicle); his motion for new trial was overruled, and he appeals to this court. The majority affirms.
I dissent from the majority ruling because of what I conceive to be three serious and grievous errors in the charge of the court. Two of the errors occur in Enumeration no. 10, and one of the errors occurs in Enumeration no. 8.
1. Enumeration no. 10. (a) The jury retired at 9:15 a.m. and returned at 11:55 a.m., and the foreman addressed the following question to the trial judge: Q. "It was regarding the situation . . . there was something in there about the possession of the parts as related to the car, I believe, and what the possibilities were relating to that?” The court answered as follows: "Well, the Court will give you this rule of law, which I believe will answer your question. If the jury finds under the rules given in charge that an offense for which a conviction could be had under the indictment was committed by someone, and that all or a part of the goods described in the indictment were recently thereafter found in the possession of the defendant on trial, such possession, if not explained by all the evidence to the satisfaction of the jury consistent with the innocence of the defendant, may raise an inference of guilt sufficient to authorize the jury to identify the defendant as a guilty party and convict him of the crime under the indictment. This is an inference which the jury may draw, but is not compelled to draw from the evidence, and is not an inference which the law draws from the facts. Now, Mr. Foreman and members of the jury, do you have any other inquiry that you wish to make?”
This was at a very critical stage of the trial as it was *936evident the jurors were about to reach a verdict after considering the case for two hours and forty minutes, subject to clearing up this point. This was a most unfair as well as an incorrect charge. Surely the trial judge must have thought the jury wished to know what rules they might use in order to convict; and he proceeded to so instruct them, though the question itself does not indicate that was in the jury’s mind. Not one word was said by the trial judge in his instructions about "innocence,” or "acquit” — or "find him not guilty.” The charge as given dealt entirely with how the jury might reconcile and square their consciences with the fact of conviction. Didn’t the jury wish to know — and didn’t the trial judge wish them to be instructed — as to how they might go about acquitting, or finding the defendant not guilty? Didn’t the rule work both ways? Surely the jury wanted to know — and the learned trial judge should have known they wanted to know — by what rules they would acquit and by what rules they would convict. Finding defendant not guilty did not seem to be important to the trial judge at this important and critical phase of the trial, when the jury returned for further instructions after considering the case for two hours and forty minutes. This charge was argumentative and warrants a reversal and the grant of a new trial. Hayes v. State, 58 Ga. 35, 36 (9); Bellamy v. City of Atlanta, 75 Ga. 167 (1); Thomas v. State, 95 Ga. App. 699 (5) (99 SE2d 242).
(b) But the trial judge used certain language in this excerpt which is even more argumentative and prejudicial than the totality of the entire excerpt. The trial judge squarely placed upon the defendant the duty of explaining by all the evidence his possession of the stolen articles. His exact language was: ". . . such possession, if not explained by all the evidence to the satisfaction of the jury consistent with the innocence of the defendant, may raise an inference of guilt sufficient to authorize the jury to identify the defendant as a guilty party and convict him of the crime under the indictment.”
This is even more argumentative and more prejudicial than the entire tenor of the excerpt, which we have pointed out did not even give voice to the possibility of acquittal. There were two parties to this litigation, to *937wit, the State of Georgia, represented by its district attorney, and the defendant represented by his counsel. Defendant and his counsel had no control whatever over the district attorney and the evidence that he might and did introduce. The district attorney was striving as mightily as he could not to introduce evidence that would explain the possession of the stolen articles was consistent with defendants innocence. It was his job, and he was doing his job, to introduce evidence to the contrary. The defendant’s counsel alone was striving to introduce evidence that showed defendant’s possession was consistent with his innocence. But the trial court told the jury that unless all the evidence (meaning the state’s evidence and the defendant’s evidence) showed his possession to be consistent with innocence, then the jury would be authorized to convict him. This was not only highly and prejudicially argumentative — but it was clearly erroneous, and was not in accordance with the law. If the jury found, from evidence of the defendant alone, that his possession was consistent with innocence, then the jury had the right to believe that evidence and to acquit him. But here the jury could say: "The defendant explained his possession satisfactorily in a way that was consistent with his innocence and we believe him; but the judge told us that all the evidence, including the state’s evidence, must show his possession to be consistent with his innocence before we can acquit him.”
There is no question whatever but that a defendant is entitled to explain his recent possession of stolen property and have that explanation accepted despite evidence of the state to the contrary. In August v. State, 11 Ga. App. 798 (4) (76 SE 164), it is held:"... And whilst the burden is on the defendant, ... to explain the possession [of stolen goods] to the jury, such explanation may be drawn from any evidence in the case which demonstrates it, or from the statement of the defendant, if such statement satisfied the jury upon that point.” (Emphasis supplied.) But in the case now under consideration the trial court reversed this rule and required defendant to show by all the evidence that his possession was consistent with innocence. This error in the charge warrants a reversal and a new trial.
*9382. Enumeration no. 8 complains that the court charged the jury "if you find and believe that the defendant is not guilty of any crime, or if you have a reasonable doubt as to his guilt, it would be your duty to acquit.” The grand jury had indicted defendant for taking and carrying away, with intent to steal, a Ford automobile belonging to Jerry Fuller of the value of $1,000. To this indictment defendant pleaded not guilty, and the one and only issue was as to whether he was guilty of stealing this particular Ford automobile.
But the trial judge in effect, "threw the book” at the defendant and charged the jury it would be their duty to acquit "if you find and believe that defendant is not guilty of any crime.” Surely this imposed upon him a burden that he was not required to carry; it was a catch-all and a general charge that if he stole the automobile in question, or committed any other crime, he would be guilty, otherwise not guilty. Suppose he violated the speed law while on the way to court? Suppose he was guilty of assault? Under the trial judge’s charge, he should have been convicted because these come under the broad category of "any crime.” There seems no point in expending further discussion of this obvious error. See Henderson v. State, 134 Ga. App. 898 (216 SE2d 696).
3. Because of the two errors in the charge enumerated as no. 10, and the one error in the charge in enumeration of error no. 8, this case should be reversed and a new trial granted to defendant, and I so vote.