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Lawskills.com Georgia Caselaw
BLACKWELL v. THE STATE.
37668.
Larceny (automobile). Fulton Superior Court. Before Judge Andrews. February 3, 1959.
TOWNSEND, Judge.
1. In a prosecution for larceny the recent possession of the stolen property not satisfactorily explained will authorize a conviction. Ordinarily the question of whether or not the explanation of such possession is satisfactory so as to at least raise a reasonable doubt as to the accused's guilt is a question for the jury.
2. A special ground of a motion for new trial which contains as exhibits the affidavits of prospective witnesses, but fails to have such affidavits properly supported as required by Code 70-205, does not require the grant of a new trial.
Walter H. Blackwell was indicted and convicted in the Superior Court of Fulton County for larceny of an automobile. The prosecutor testified that the black Chevrolet in question was stolen from in front of his house between 1 a.m. and 7:30 a.m. on June 20, 1958; that about five weeks later he saw the automobile in the defendant's possession and followed it to a parking lot; that he positively identified the automobile as his, and, on examination, found in the glove compartment a pair of sun glasses, a safety lamp, and some maps which he had left there and on which he had marked lines and mileage between certain towns. He also identified the tires as the same type he had had put on the car just before it was stolen. The defendant in his statement said the prosecutor had given him proof the automobile was his, including describing certain marks under the hood which were in fact present. An Atlanta detective testified that the key in the defendant's possession was a "cut key", and not the original key which came with the car. He also testified that a duplicate tag slip filed in the Fulton County Tag Department showed a transfer of the automobile from Paul Volks to the defendant dated June 20, 1958, and that the automobile had a Clayton County license tag; that he had searched for Paul Volks and had asked the defendant for information regarding him but was unable to find anybody by that name. Another witness for the State testified that while working on a job he saw the defendant parked with the vehicle in a woods at about 7 o'clock the morning of the theft near North Druid Hills Road; that he started toward the car but the defendant ran down to him and asked to borrow some tools; that another man drove up in a Ford; both went away in the Ford and later returned and the defendant then drove off the Chevrolet. The witness caused a report to be made on the automobile, attempted to check the tag which was on the car at the Tag Bureau and later attempted to get in touch with Robert Lamb, the prosecutor. The defendant in his statement said lie had bought the car from Paul Volks after it had been wrecked, and received a tag receipt which he immediately recorded; he admitted borrowing tools from the State's witness to fix the car and stated that from there the men drove to his mother's house where they completed the trade and he received a bill of sale reading "I Paul Yolks transferred one 57 Chevrolet over to W. H. Blackwell on 20 of June 1958 motor number F 10573A. W. H. Blackwell. Paul Volks. Subscribed to and sworn before me this 20th day of June 1958. Betty Warren, Notary Public, DeKalb County." The paper bore the printed stamp of Ginn Nursing Home, and Mrs. Ginn, the defendant's mother, testified that she had placed her stamp thereon at the time of the sale in her living room on June 19th, or 20th, and had advanced $650 toward the purchase of the car. A witness for the State testified that the automobile in question was a 1958 Chevrolet and had no motor number.
The jury returned a verdict of guilty. The defendant filed his motion for new trial on the general grounds and one special ground, and the denial of this motion is assigned as error.
1. In a prosecution for larceny, the very recent possession of the stolen property, unless explained to the satisfaction of the jury, will authorize a conviction. Code 38-109; Weeks v. State, 66 Ga. App. 553 (18 S. E. 2d 503); Hardy v. State, 72 Ga. App. 101 (32 S. E. 2d 914); Wakefield v. State, 76 Ga. App. 271 (45 S. E. 2d 675); Hansford v. State, 83 Ga. App. 502 (64 S. E. 2d 459); Yawn v. State, 94 Ga. App. 400 (94 S. E. 2d 769). The evidence relating to the prosecutor's identification was amply sufficient to establish that the automobile in the defendant's possession was the same one which had been stolen from the witness. Other evidence that it was stolen after 1 a.m. on June 20th, and was in the defendant's possession at 7 a.m. that same morning in an isolated location where he was working on it presented a jury question as to the defendant's guilt. This is true even if the jury accepted all of the testimony of the defendant's mother as to the transaction between the defendant and another man called Volks which took place in her presence, as they might have considered whether such transaction constituted a bona fide transfer of property, or whether it, together with the transfer of the license tag, was merely an attempt to make it appear to the mother as well as others generally that the vehicle came into the defendant's possession legally, by creating a fictitious seller. The defendant's explanation of his contact with the apparently hypothetical Volks and his reasons for being unable to locate him were weak, and the jury had a right to disregard them in the absence of further corroboration. Accordingly, the general grounds of the motion for a new trial are without merit.
2. The single special ground contains affidavits of two witnesses, and seeks a new trial on the basis of newly discovered evidence. Aside from the fact that the matter set out in the affidavits, if proved, would be in part hearsay, and of extremely slight probative value, the special ground is not complete so as to meet the requirements of Code 70-205 in that there are no affidavits as to the residence, associates, means of knowledge, character and credibility of the proposed witnesses. The special ground was properly overruled.
The trial court did not err in denying the motion for new trial.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Paul Webb, Solicitor-General, Frank S. French, Eugene L. Tiller, contra.
Atkins & Atkins, Ben S. Atkins, Dorothy D. Atkins, for plaintiff in error.
DECIDED MARCH 18, 1959.
Saturday May 23 00:33 EDT


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