1. The evidence, though conflicting, amply authorized the verdict of guilty.
2. Under the facts of this case, the court did not err in failing to charge the law of circumstantial evidence, without a request.
3. Where the State proves recent possession of stolen property in the defendant, the burden of procedure shifts to the defendant to show that such possession was innocent. In the instructions of the judge to the jury, it is not so material whether he calls the situation from the State's standpoint (a) "a prima facie case," or (b) evidence "tending to show guilt," or (c) "presumption of guilt," or (d) "inference of guilt," or (e) by some other term. But it is material that the court clearly instruct the jury that the question thus arising in the trial of the case is an issue of fact for the exclusive determination of the jury, and that it is not a presumption of law.
4. The assignments of error on special grounds 6, 7, and 8, reveal no error, for the reasons set out in the opinion.
DECIDED MAY 11, 1946. REHEARING DENIED JULY 23, 1946. The defendant was convicted of cattle theft. The indictment charged him with stealing from B. Lewis Brinson "four head of cattle, all being marked with crop and half-crop in right ear, and two under-bits and crop in left ear, as follows: one castrated male *Page 99 cow, commonly called a steer, being of red color with small amount of white on end of tail, value $35; one black butt-headed cow, with white on face, being of slender build, value $25; one small blocky-built cow, having horns curved in, being of light red color with lighter-mingled spots, of value of $25; and one black heifer, with small white spots in forehead having horns, value $35." The defendant filed his motion for a new trial on the general grounds and thereafter added five special grounds. The court overruled the motion, and the defendant assigns error thereon.
The evidence for the State is substantially as follows: The prosecutor Brinson testified that he owned a farm about three and one-half miles from that of the defendant, and owned cattle on the open range. About October 24, 1944, he missed eight head of cattle. About six or seven days before he missed them he had seen the cattle in the road about a mile and a half from the defendant's place. When he missed his cattle he went to the defendant's place, searching for them. He found in the defendant's field pasture two of them, which had ranged with the other missing cattle, and which were different from them, in that the two found were wild and hard to pen or "to get up close to." The prosecutor got the two cattle from the defendant's pasture next day. He did not find any signs where cattle had been loaded at the defendant's pasture, and continued a search for the other missing cattle. After information that the defendant had sold some cattle in Savannah, he went to Savannah, and found one of his missing cattle in the stockyards — that one being described in the indictment. He did not know of his own knowledge who carried this steer to the stockyards in Savannah, but afterwards talked with the defendant, who wanted to see the steer, and for this purpose the prosecutor and the defendant met at the prosecutor's farm. The prosecutor testified that at the farm "I said, `That is the steer out there that was in Savannah,' and he said `No, you don't mean that one, do you?' And I said, `Yes, I certainly do, that is the steer there,' and he says, `Well, yes, I believe it is,' he said, `that is one I raised from a red cow,' and he said `She has a white calf now.' He did not say there whether or not he had taken that steer to Savannah. He said it was his steer and he raised it." The prosecutor kept the steer confined on his premises for about seven months and thereafter kept it in the woods for about two months where he would see it occasionally. *Page 100 Then the steer was shot by someone on the premises controlled by the defendant, thus wounding the animal to such an extent that it had to be killed. The prosecutor made photographs of the steer after recovering it from Savannah, and also had a photograph made of the steer and its mother. The steer's mother was not missed and was in the possession of the prosecutor at the time of the trial. These photographs were introduced in evidence. The witness further testified as to the value of the cattle alleged in the indictment and as to their color and marks. The prosecutor missed the cattle on October 24, 1944, and recovered the one steer in Savannah on October 29 in the same year. He did not locate any of the other missing cattle.
Ivey Brown and Coleman Boatright, men from the community of the prosecutor's farm, who were familiar with his cattle and his cattle mark, went to the stockyards in Savannah on the 29th, when one of the missing cattle, as alleged in the indictment, was located.
On cross-examination, the prosecutor testified substantially: That when he and the defendant were at the prosecutor's farm observing the steer which had been recovered from the stockyards, the defendant said, "No, that is not the cow, you must be mistaken," but later said, "Yes, it is mine, I remember now," and further "that it is mine." The witness further testified that the defendant did not say all the time that it was his cow, but to start with "he said that I must be mistaken about the cow and he didn't say anything about it being his cow, but he did say that it was his, during the conversation." The cattle of the prosecutor and of the defendant ranged together, either from the defendant's pasture or some other people's pasture. The prosecutor said that his own cows hardly went as far as the defendant lived. The witness did not know how many cattle the defendant owned in the different woods, and did not know exactly how many he, the prosecutor, owned on October 24, 1944, but he did know the exact number in the particular drove of which the cattle described in the indictment were a part.
Robert Lee Smith testified for the State substantially: That he was sales manager of cattle sales in the stockyards in Swainsboro and in Chatham County; that on Tuesday, October 24, 1944, he went to Savannah for the purpose of attending to his job of weighing in the cattle; that with three other parties he left home for *Page 101 Savannah at 5 o'clock in the morning; that just outside Graymont they passed someone traveling in a truck. The radiator of the witness's car began leaking and he stopped the car to fix it; he did not know that the truck which he passed near Graymont had cattle in it, but while fixing his radiator, the defendant passed in a truck with cattle in it. He did not know the make of the truck, but it was a large one and had a slat body with cracks in it; he did not know how many cattle were on the truck. The truck which the witness passed near Graymont had a body similar to the one that the defendant was driving when the defendant passed the witness, who was adjusting his radiator; it looked like the same truck. The witness then went to Savannah and began weighing in cattle around 9 o'clock on that day. He saw the defendant at the stockyards when the defendant came in, and the witness checked up the cattle, put on the numbers and the records of the cattle. He stuck the numbers on the cattle, but did not make the record because he was the only person there. The man at the scales makes the record; that was the job of the witness, but he didn't have time and "he tagged them and the weigher wrote them down." There were nine head of cattle in the truck driven by the defendant that day. "I myself made a record of the kind of cattle that he carried in that truck and I have got that record with me." He handed the record to the solicitor-general. The witness said that he could refer to the memorandum which he had made, and tell the kind of cattle "mighty well" and how some of them were marked, and he stated them. He said that he had been asked to look out for a Jersey yearling of about the same description as one of them; that a Mr. Boatright had asked him to look out for a cow that Boatright had lost. In doing so the witness took down a description of all the cattle in the defendant's truck. He stated: "There was a red cow with a white face with crumpled in horns, and she was chocky built. The cow was marked crop and half-crop in the right and crop and two underbits in the left. . . There was one black cow with white face, the same mark, she was butt-headed. . . There was one heifer with a white face, little buck horns, the same mark. . . There was one red-brindled steer, the same mark and he was horned." It will be noted that the marks were of the same description as those alleged in the indictment.
After the witness weighed in the cattle, he learned of the prosecutor's *Page 102 going to Savannah in search of his cattle. The prosecutor got in contact with the witness, who went to Savannah with him. The defendant carried the cattle to Savannah on Tuesday, and the prosecutor went there on Sunday. He testified that during a sale day at the stockyards all of the cattle are not always taken away from the stockyards on the day of the sale. At the time the prosecutor went to Savannah on Sunday there was still in the pen one of the four marked cattle that the defendant had carried there on Tuesday. The witness did not know whether anyone went with the defendant to Savannah when he carried the cattle to the stockyards. There was no one with the defendant when the witness recognized him on the truck, and the witness did not see anyone with him that day in Savannah. The reason why the steer, which the prosecutor recovered from the stockyards, remained in the stock pen from Tuesday until Sunday was that a Mr. Webb, who had purchased the steer at the sale did not take it and it was left on the yard's hands. All the other cattle that the defendant carried to Savannah on that trip had been moved except the steer. The cattle which the defendant carried to Savannah were not of the beef type. They were poor. The same type of cattle was selling better on the market in Swainsboro than in Savannah. They were bringing about 2 1/2 cents per pound higher price in Swainsboro than in Savannah.
It was dark when the witness passed the truck near Graymont, but it was daylight when the defendant passed him while he was adjusting his radiator. There was no one in the truck with the defendant that the witness could see, and if anyone had been in the truck with him the witness could have seen him. The witness did not know what time the defendant reached Savannah, but he reached the stockyards about noon time; and did not know how long the defendant had been at the stockyards before the witness saw him. There were a number of truck-loads of cattle there, and the witness took them in rotation, and did not know how long the defendant had to wait.
Ivey Brown, testified for the State: That he had occasion to go to Savannah with the prosecutor around the latter part of the week of October 20, searching for some cattle. Prior to that time the witness was familiar with the prosecutor's cattle, but did not know *Page 103 the mark. When he went with the prosecutor to Savannah, they found a steer which belonged to the prosecutor, and which the prosecutor finally recovered. This was the only one of the cattle which they were looking for "that we found." The cattle of the witness and of the prosecutor ranged together, and the witness was looking for cattle that he had lost at the same time. On cross-examination the same witness testified that his state of feeling toward the defendant was bad. On redirect examination, he said that, as to the reason for his bad feelings, he would not say exactly, but that he and the defendant had not gotten along so well for years for first one thing and then another. After the prosecutor and the witness had missed their cattle and before they went to Savannah, the witness went to the defendant and inquired of him if he had taken any cattle away. That conversation was on Wednesday before the prosecutor and the witness went to Savannah on Sunday. The defendant said that he had not taken away any cattle. The witness went to the pasture of the defendant, and some of the prosecutor's cows were in the pasture, a part of the "bunch" from which the prosecutor's cows were missing. The witness went to the loading chute of the defendant, and it looked like it had been used recently. It had rained on the Friday and Saturday before October 24, and the chute had been used since the rain.
Coleman Boatright, testified for the State: That he lived in the vicinity of the defendant and the prosecutor; that he was familiar with the prosecutor's cattle, having seen them about every day; that the cattle ranged out in front of his house in the woods about a mile from the prosecutor's farm; that he also lived about a mile from the pasture of the defendant; that before the prosecutor claimed to have missed some cattle, the witness went by Allen Brown's pasture, and saw some of the prosecutor's cattle and Ivey Brown's cattle in the defendant's pasture. Among the cows of the prosecutor, the witness saw a black butt-headed cow, black with a white face, and a red cow and a spotted yearling. The witness went with the prosecutor to Savannah, but could not say that he saw any of the cattle there that he saw in the pasture. He saw in Savannah a red steer which belonged to the prosecutor, and saw the same steer after the prosecutor recovered it. The witness further *Page 104 stated that the cows ranged in Emanuel County. On cross-examination, he testified that he did not see the red steer in the defendant's pasture, and he described three other cows that he saw.
Math Boatright testified: That he lived in the vicinity of the farm of both the prosecutor and the defendant, and was familiar with the prosecutor's cattle; that he knew the drove of the prosecutor's cattle pretty well; that they ranged back of his fields. He knew the time the prosecutor claimed to have lost his cattle. Before the cattle were missed they ranged back of the field of the witness, and they came up in front of the house. The witness saw some of the prosecutor's cattle at Allen Brown's on Sunday before the prosecutor missed his cattle. They were in a field or pasture — the defendant's filed. The witness never noticed how many cattle there were — three or four, or maybe more; he just noticed the cows generally so he could tell the prosecutor where they were. On cross-examination, the witness testified that some of the defendant's cows ranged in and around the place of the witness; that he did not know how many the defendant had; that he saw a good bunch of cattle; that he would not say there were thirty or forty.
Kenneth Boatright testified for the State: That he knew about the time the prosecutor missed his cattle; on Sunday before that time he saw some of the cattle in the defendant's pasture; the father and the brothers of the witness were with him; after the prosecutor missed his cattle, the witness returned to the defendant's pasture and got some of the prosecutor's cows; he did not see but two. The witness saw more of the prosecutor's cattle in the defendant's pasture, before the prosecutor missed them, than he found on his return to the pasture. The witness did not recall whether he saw the steer described in the indictment in the defendant's pasture. On cross-examination, he testified in substance as the witness did immediately preceding him.
R. J. Boatright testified for the State that he knew the prosecutor's cattle; that he did not accompany the other members of the family to the defendant's pasture on the first trip, but did go to the pasture afterwards and found two of the prosecutor's cows in the pasture.
The next witness testified substantially as did the witnesses preceding him. *Page 105
Bill Evans and his wife, tenants of the prosecutor, testified for the State that they lived on the prosecutor's farm and had charge of the bunch of cattle; that they raised from a calf the red steer described in the indictment; that the steer was missed for a few days and then returned to their pasture; that the mother was still there.
A tenant of the defendant testified for the defendant to the effect: That the defendant had purchased the mother of the red steer described in the indictment, about March, 1944; that the witness had milked the mother of the steer until she and the calf were sold about October, 1944; that the steer was marked as described in the indictment when it was purchased and put into the tenant's possession; that the red steer which the prosecutor brought from Savannah was the same one purchased by the defendant in March, The defendant introduced five other witnesses who testified to the effect that the defendant had purchased a load of cattle in March, 1944, twelve in number, at the stockyards in Statesboro, and that among this load of cattle was the red steer described in the indictment. The defendant also introduced a witness who testified that he accompanied the defendant on the day when the cattle which had been purchased in Statesboro were carried to Savannah. The defendant in his statement substantially corroborated the testimony of his witnesses. 1. As to the general grounds, the evidence, while conflicting, is amply sufficient to sustain the verdict.
2. Special ground 1 assigns error because the court failed to charge, without a written request, the law of circumstantial evidence. Counsel for the defendant contends that the evidence is wholly circumstantial, and therefore it was reversible error to fail to charge such law. With this position of able counsel we can not agree. The evidence, which we have set out in detail, shows that the possession of the property was in no wise circumstantial, particularly as to the red steer. The defendant admitted the possession and based his defense solely upon a bona fide claim of right. The evidence for the State showed recent possession on the part *Page 106 of the defendant after the alleged theft, and the defendant admitted the possession a few days after the cattle were missed. It is true that he claimed to have purchased the steer about eight months prior thereto, but this leads back to the same proposition of his claim of good faith in the transaction. Counsel for the defendant rely on Jones v. State, 105 Ga. 649 (31 S.E. 574). Under the facts of the instant case, that decision does not require a reversal as to this ground. See alsoCarter v. State, 57 Ga. App. 180 (194 S.E. 842).
3. Special ground 5 assigns error on the following excerpt from the charge of the court: "Gentlemen, I charge you that, if you find that a larceny alleged in the indictment was committed by someone, and that very soon thereafter the cattle, or any one of them, was found in the recent possession of the defendant, such possession, if not satisfactorily explained, consistent with the innocence of the defendant, raises a presumption of guilt and would authorize you to convict the defendant. This presumption of guilt, gentlemen, however, is one of evidence and not of law, and may be rebutted by proof satisfactory to the jury." Error is assigned on this charge, because (a) it involved the law applicable to receiving stolen property, an offense distinct from the one charged in the indictment; (b) had a tendency to lead the jury to believe that they were trying the defendant for two separate offenses; (c) it was confusing and misleading to the jury, in that they could believe beyond a reasonable doubt that the defendant was not guilty of cattle stealing, but would still be guilty of receiving stolen goods; (d) such charge instructed the jury that the possession of the alleged stolen cattle would raise a presumption of guilt as to cattle stealing when as a matter of law and fact, such possession, if any, could raise a presumption, if any, of the offense of being in possession of stolen goods; (e) such charge placed on the defendant a degree of proof greater than that required by law and deprived him of the law as to the presumption of innocence; (f) failed to instruct the trial jury that they must believe the defendant guilty beyond a reasonable doubt before he could be convicted.
If we interpret the assignments of error correctly, they are without merit. Able counsel in their brief do not argue the specific assignments of error as outlined in this ground. They contend *Page 107 that the judge erred in using the phrase, "presumption of guilt" resulting from the proof of recent possession of stolen property. Nevertheless, we will discuss this ground from the viewpoint of counsel's argument. It will be noted that in the latter part of the excerpt the judge stated that it was a presumption of fact and not of law. This court stated in Barber v. State, 61 Ga. App. 578 (4) (6 S.E.2d 797): "It is sometimes said that the recent possession of stolen goods warrants a presumption ofguilt; but the presumption is not one of law but of fact. It is, however, more correct and less confusing to refer to it as aninference rather than a presumption; and not an inference which the law draws from a fact, but an inference which the jury are authorized to draw; and not an inference which the jury are compelled to draw." In support of his contentions, the defendant cites Jones v. State, supra, and Gravitt v. State,114 Ga. 841 (40 S.E. 1003, 88 Am. St. R. 63). We have read those cases carefully and find no principle held therein that would require a reversal of the instant case under its facts. The proof of recent possession of stolen property makes out a prima facie case and shifts the burden of procedure to the defendant. To relieve himself of the burden thus cast upon him, he must, by facts, explain to the satisfaction of the jury that his possession was not a guilty one. In taking up the burden thus cast upon him, the presumption of innocence still shields and protects him. It is to be expected under the law that he will successfully carry it. The courts, both trial and appellate, have not been uniform in the choice of terms or phraseology to express such a situation. In the situation which prevails in a trial when the State has established by proof the defendant's possession of recently stolen property, it is not so material whether we call it (a) "a prima facie case," or (b) evidence "tending to show guilt" of the accused, as counsel for the defendant contends, or (c) "presumption of guilt," or (d) "an inference of guilt," or (e) by some other term or phrase. But it is material and generally reversible error for the trial court not to make clear and plain to the jury that it raises an issue of evidence and not a question of law. If it were of law, the jury in the performance of its duty would be required to convict, but being an issue of fact, they are only authorized to convict, in the event such possession is not explained *Page 108 to the satisfaction of the jury, the jury being the sole and exclusive judges as to this.
4. Special ground 6 complains because the court admitted, over objection of the defendant, the testimony of Robert Lee Smith, a State's witness: "Mr. Math Boatright had lost a yearling and his son, R. J., asked me to look out for him, and it filled the description so easy I kept a record of it." Error is assigned on the ground that this was confusing and prejudicial and created the impression that the defendant had stolen property other than that described in the indictment. By reference to the evidence set forth above, we find that the witness Smith was the employee at the stockyards, and when the defendant brought this load of cattle there, the witness made a descriptive memorandum of all the cattle in the truck. The evidence reveals that the employee of the stockyards did not know, at that time, that the prosecutor had lost any cattle, and the testimony objected to was given by the witness who was then testifying as to why he made the memorandum. The record does not go into any detail as to whether the cow mentioned was the one which Mr. Boatright had lost, or for the theft of which the defendant had been tried, or anything of the kind. We think that the evidence was admissible for the purpose of explaining why the witness made the memorandum. Counsel for the defendant cite Lanier v. State, 187 Ga. 535 (1 S.E.2d 405). We do not think that this case is applicable to the present facts.
5. Special ground 7 complains because the court admitted, over objection of the defendant, a photograph which showed the red steer described in the indictment and its mother. We can conceive of no harm which could have come to the defendant from the admission of this testimony. This ground is not meritorious.
6. Special ground 8 complains because, as alleged, the witness Smith was permitted to testify from a memorandum which he did not make. There was no objection to this form of testimony and the ground so shows. While the evidence on whether or not the witness had his original or had a copy from the record is not altogether clear, he does in one portion of his testimony state, however, that he made the memorandum from which he was refreshing his memory as to the description and the marks of the cattle. Be this as it may, since he allowed to testify by referring to the *Page 109 memorandum to refresh his memory without objection, this affords no reason why the case should be reversed on this ground.
The court did not err in overruling the motion for a new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J.,concur.