dissenting.
I must differ with the conclusion of the majority that the trial court’s reading of OCGA § 16-8-7 did not have the effect of altering the State’s burden of proof. Although the court did give a correct charge on the doctrine of burden of proof, there were no remedial instructions given to clarify the difference between the indictment as drawn and the Code section as written.
The indictment specifically required that the jury, in order to convict appellant, find that appellant had both received and retained stolen property. Because OCGA § 16-8-7 is phrased in the disjunctive, it would allow the jury to elect whether the accused received, or disposed of, or retained stolen property, and to convict if it found that any one of those elements had occurred. Thus, charging the Code section presented the jury with an alternative, conflicting theory allowing a conviction with less proof than that demanded by the indictment. Therefore, I agree with appellant that the trial court’s refusal to recharge or otherwise clarify the law to the jury, as requested, constituted reversible error. Accordingly, I respectfully dissent. See Nesmith v. State, 183 Ga. App. 529 (359 SE2d 421) (1987).
I am authorized to state that Judge Sognier joins in this dissent.