Galloway v. State

Shulman, Judge,

dissenting.

While I would agree with the majority’s holding in Divisions 1 and 2, for the reasons set forth below I would reverse the judgment of the trial court.

I cannot agree that the trial court erred in refusing to charge appellant’s Request to Charge No. 1, which reads as follows: “Proof of possession of recently stolen property will not authorize an inference that the person received it with knowledge that it was stolen.” The charge did not state a full and complete statement of the law, because it omitted the principle that “unexplained possession of recently stolen goods can be used in conjunction with other evidence to infer guilty knowledge.” Higginbotham v. State, 124 Ga. App. 489 (3) (184 SE2d 231).

I do agree, however, with defendant’s contention that the trial *88court’s charge on the inference to be drawn from unexplained recent possession of stolen property was error. The trial court charged as follows: that recent possession of stolen property “would be a circumstance, along with all the other evidence adduced, from which the jury may infer guilt.” Under the authority of Hilton v. State, 134 Ga. App. 590 (2) (215 SE2d 261), I find this charge to be error.

The trial court’s use of the term “along with” in the context of its charge gives rise to the erroneous implication that guilt may be inferred solely from recent possession of stolen property, although other circumstances may also or likewise imply defendant’s guilt.

The trial court’s failure either to clearly instruct that recent possession must be in conjunction with other evidence in order for an inference of guilt to arise; or to instruct that recent possession standing alone will not authorize an inference of guilt, constitutes reversible error. Hilton, supra.

In none of the cases cited by the majority is the particular issue of this case raised; that is, that the charge did not instruct the jury that, standing alone, recent possession of stolen goods will not authorize a conviction for theft by receiving. A similar charge was approved in Aiken v. State, 226 Ga. 840 (2) (178 SE2d 202), but in that case the Supreme Court addressed the question of whether the charge was burden-shifting, and not the issue of whether the charge fully instructed the law on recent possession.