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SMITH, Judge.
Burglary. Bibb Superior Court. Before Judge Morgan.
Bobby Lee Selph appeals his conviction by jury in the trial court for burglary and sentence of 12 years, the last 4 on probation. His grounds are as follows: (1) the verdict was unauthorized; (2) the court failed to direct a verdict in his favor; and (3) the court's charge on flight. We affirm.
Two police officers in Macon, Georgia noticed Selph with a motorcycle and blue helmet. It was approximately 1:55 a.m. and he was parked on the sidewalk. An investigation showed the motor was cold. Selph displayed his driver's license, gave his address and explained he was out of gas and his brother-in-law had gone to a Fina station to get some. Later the officers reported this motorcycle and were informed it belonged to another party, not Selph. After leaving Selph, the officers passed a Fina station about 2 blocks from where they had talked to Selph and noticed a broken pane of glass in a bay door. Upon opening the door, motorcycle tracks were discovered on the floor where it had passed through a puddle of water. The operator testified that he locked up at 6 p.m. and the motorcycle and helmet described by the officers were locked inside. He also stated that Selph had operated the station in the past, had been around the station several times that day and was given a ride home that night by the operator after closing. Upon learning these things, officers went back to the place where they first saw Selph and the motorcycle. Selph was gone, the blue helmet was found on a vacant lot about 20 feet away and the motorcycle was about 100 yards from where Selph and the officers first met. Upon investigation, it was found that the address given by Selph was false; however, he was arrested later at the place where he and his wife lived. The owner of the motorcycle identified it and the helmet, stated that the key was in the switch and it was hard to crank. There was evidence the vehicle had been pushed some distance. Selph offered no explanation for the possession of the motorcycle and helmet. He claimed misidentification and alibi. However, his evidence of alibi did not exclude his presence at the scene of the crime or the spot where the officers saw him with the motorcycle.
"A person commits the offense of burglary from a motor vehicle when, without authority and with intent to commit a felony therein, he enters or remains in said motor vehicle. Code Ann. 26-1601. In the instant case, the state's evidence was that an unknown person had entered the pickup truck and had taken the revolver from it. Shortly thereafter, the defendant sold the revolver to an acquaintance, despite initial protestations of a companion who claimed that the gun was hers.
App. 728 (1) (88 SE 212); Craig v. State, 91 Ga. App. 418 (85 SE2d 777). While there has been some criticism of charges where the word "presumption" is used rather than "inference" (Byrd v. Hopper, 234 Ga. 248, 251, supra) and it would be better to use the word "inference" or the words "presumption of fact," we do not have that problem here.
To convict a defendant based upon recent possession of stolen goods, it must be shown the goods were stolen and there must be an absence of or an unsatisfactory explanation of that possession. Chubbs v. State, 204 Ga. 762, supra. The proof of these facts beyond a reasonable doubt creates a presumption or permissible inference of the defendant's guilt, that is that the defendant himself committed the crime charged and proven. This rule makes unnecessary direct or other circumstantial proof that defendant committed the crime charged and proven in order to convict. The reasoning in the Bennett case completely eliminates this age-old rule in this state, and we must, in view of the overwhelming authority by this court and the Supreme Court disapprove it. The case relied upon and cited in the Bennett case was a case in which no proof of burglary by any person was shown.
The judgment of reversal in Bennett, however, was correct because of the holding in Massey v. State, 141 Ga. App. 557 that "an automobile per se cannot be the subject of a burglary." We therefore do not overrule Bennett but do disapprove of its erroneous reasoning.
2. The evidence that the defendant, after being questioned by the police officers while in possession of the stolen motorcycle and helmet, did thereafter attempt to hide the stolen vehicle and helmet and left the scene is sufficient to authorize a charge on flight. There was no error in so charging.
Walker P. Johnson, Jr., District Attorney, Don Thompson, Thomas H. Hinson, Assistant District Attorneys, for appellee.
J. Robert Daniel, for appellant.
Friday May 22 06:50 EDT

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