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Receiving stolen goods. Before Judge Wood. Fulton Superior Court. February 9, 1955.
1. The assignments of error on the general grounds are not meritorious.
2. The court did not err in denying the motion for a new trial as to the one special ground.
Ralph Staffins and D. C. Pope were jointly indicted for larceny of an automobile and for receiving stolen goods. The indictments contained fourteen counts. The odd-numbered counts each contained charges of larceny of an automobile, and the even-numbered counts contained charges of receiving stolen goods. At the conclusion of the evidence, the trial judge directed a verdict of not guilty as to counts 3, 4, 5, 6, 7, 8, 13, and 14. The jury found the defendants not guilty on counts 1, 9, and 11, and returned a verdict of guilty as to counts 2, 10, and 12. Both defendants were sentenced to not less than one nor more than one year on each count, the sentences to run concurrently. The evidence as to each count is set out substantially hereinafter. The evidence with reference to count number 2 was substantially as follows: that Herbert S. Goldstein was the owner of a Chevrolet sedan automobile of the value of $1,695; that on January 19, 1951, he loaned the car to his sister, Mrs. Ethel Goldstein; that the motor number of the automobile was HAA 444086; that his sister testified that she parked the car near Bass High School in Atlanta, Fulton County, Georgia, and when she returned, the car was gone, and she did not give anyone permission to take it; that this car was sold by the defendants to T. Allen McCoy, a used-car dealer in Augusta, Georgia, on January 26, 1951; that, at the time he purchased the car, the visible motor number was HAA 753104, but on later checking by Officer John L. Cason of Augusta in the presence of the purchaser, the true number was found to be HAA 444086; that the defendants gave to the purchaser a Georgia certificate of registration bearing the altered motor number and dated January 18, 1951; and that the check given by the purchaser is found in the record as Exhibit No. 4.
With reference to count number 10, Mrs. Jack P. Coursey was the owner of a Chevrolet sedan automobile of the value of approximately $1,750, which she parked on Fourth Street in the City of Atlanta, Fulton County, and when she returned, it had disappeared without her permission; that the motor number of her car was HAA 116561; that this car was purchased by R. O. Broome, an automobile dealer in Augusta, Georgia, and when examined was found to bear an altered motor number HAA 838721; that, at the time the motor number was checked, the defendants were at Mr. Broome's place of business, and he talked with him with reference to this automobile; that he had bought two cars from them, both Chevrolet automobiles, with reference to one of which Pope told him that he did not have to worry, that it was all right. With reference to the particular car referred to in the count of the indictment in question, he asked them, "Don't you want to go down and see it?" Pope said, "No, sir; it is hot." Staffins was there when that was said and seemed to be in accord with the statement of Pope. He did not care anything about seeing it.
John L. Cason, a detective of the Augusta police force in Richmond County, Georgia, testified that he examined several automobiles including those for which the defendants were convicted; that all of the cars he examined, and with reference to which he testified, bore motor numbers which had been altered; that he talked to the defendants Staffins and Pope with reference to these automobiles on April 18, 1951, and asked them to go with him to check the car that Mr. Broome bought, and Mr. Staffins said, "It is no use going down to check that; it is stolen too"; that he also asked Staffins if he had any more automobiles in Augusta to let him know so they could clear them all up at once, and they claimed that was all ; that both of them were present and claimed they had not sold any more cars in Augusta and that they did not show him any bills of sale for the automobiles.
The defendants both introduced character witnesses and made their unsworn statements, in which they denied their guilt and claimed to have bought the cars from one Wilburn King, who they said visited all of the automobile auction sales. The testimony also disclosed that the defendants were associated together in the used-car business.
Lt. J. L. Tuggle of the Atlanta Police Department testified that the defendants gave him a description of the man from whom they claimed to have bought the automobiles alleged in the indictment, and gave his name as Wilburn King, 1190 Gracewood Avenue, S. E. He went out to that address but did not find a Wilburn King there; that they did find a man there by the name of Thomas Raymond King. Thomas Raymond King was sworn as a witness for the State, and testified that he did not know a Wilburn King, and that he had been living at 1190 Gracewood Avenue, S. E., since October, 1937, and there had never been anyone living there by the name of Wilburn King. On cross-examination, he was asked if there was a 490 on Gracewood and testified that so far as he knew there was not. The street is a very short one, and his house is the only one on the entire block.
J. 1. Insofar as the general grounds are concerned, the evidence is sufficient to sustain the verdict, and the judgment of the trial court is affirmed as to the general grounds.
2. In the one special ground, the one excerpt from the charge of the court on which exceptions are made is as follows: "Knowledge is one of the essential elements of the crime of receiving stolen goods, and the proof, as shown by the State, must show to your satisfaction and beyond a reasonable doubt that the accused had knowledge of the alleged theft at the time it is alleged that such property was received by them, if such property was received by them; but I instruct you that knowledge may be inferred from surrounding facts and circumstances, if you determine the accused had knowledge that the goods were stolen, which may be inferred from circumstances which would excite an ordinarily prudent and reasonable man to suspect." Movant contends that the court erred in giving the excerpt of which complaint is made, in that the excerpt was error insofar as it stated an incorrect principle of law and established an incorrect standard for consideration by the jury in determining the question of guilt of the defendants; that it authorized the jury to find the defendants guilty if they received the stolen goods under circumstances which were sufficient to arouse the suspicion of an ordinarily prudent and reasonable man, although such circumstances might not be sufficient to excite similar suspicions in the minds of the defendants, and that the charge authorized the jury to base their verdict on an incorrect statement of the law, and was harmful and prejudicial to the movant. Counsel for the defendant call our attention to Bird v. State, 72 Ga. App. 843 (4, 5) (35 S. E. 2d 483) as follows: "Where one is charged with knowingly receiving stolen goods, and it is shown by the evidence that recently, after the commission of the offense, the stolen goods were found in the possession of the defendant, that fact alone would not authorize the jury to infer that the accused was guilty of receiving stolen goods knowingly unless he explained his possession to their satisfaction. Upon proof alone of recent possession of stolen goods, the law does not put the burden upon the possessor of stolen goods of proving that he was not guilty of receiving the goods knowingly, as is contended by the State. This rule, sought to be invoked by the State, would only apply to the sufficiency of the evidence which would authorize the jury to infer the guilt of the principal thief, McBride (the person who stole the goods), but would not apply to the sufficiency of the proof which would authorize an inference of the guilt of Bird (the person alleged to have knowingly received the stolen goods). Suggs v. State, 59 Ga. App. 394 (1 S. E. 2d 39); Arkwright v. State, 57 Ga. App. 221 (194 S. E. 876); Ford v. State, supra.
"Where the testimony did not show any knowledge on the part of the accused that the shirt had been stolen at the time he received it, nor any circumstances from which the jury could do more the surmise the existence of such guilty knowledge on his part, the verdict was without evidence to support it and contrary to law, and the court erred in overruling the motion for a new trial. See Birdsong v. State, 120 Ga. 850 (48 S. E. 329); Williams v. State, 16 Ga. App. 698 (85 S. E. 973)."
Counsel for the defendants, in connection with this same point, call our attention to Austin v. State, 89 Ga. App. 866 (81 S. E. 2d 508). It is contended that the words used in the charge of the court, "May be inferred from circumstances, which would excite an ordinarily prudent and reasonable man to suspect,"were reversible error. It is further contended that the court has passed on the very question here being considered against the contentions of the State, and Von Sprecken v. State, 70 Ga. App. 222, 223 (28 S. E. 2d 341) is cited in support thereof, as follows: " 'I charge you, gentlemen of the jury, if you believe beyond a reasonable doubt that this defendant bought or received the goods set out and described in the bill of indictment in the way and manner that it is alleged and described in this indictment they were taken, and if you believe they were stolen . . . or if the circumstances were such as to lead a reasonable man to believe that they were stolen, then he would be guilty of the crime charged in this bill of indictment.' . . In Peterson v. United States, 213 Fed. 920 (where a somewhat similar charge was held to be error), the court said: 'Congress [in passing the statute] used the word "knowing", and defined the crime as the purchase of stolen property by one having knowledge of the theft. It might have denounced as a crime the receipt of stolen property under conditions sufficient to create a suspicion in the mind of a reasonable man, but it did not do so. The gist of the offense is the actual state of the defendant's mind when he purchases the property, and not what, under like circumstances, might be the state of mind of some other person; the standard by which guilty knowledge is to be imputed is the defendant's mental attitude, and not that of the imaginary average man . . . The ultimate fact which the jury must find before a conviction is warranted is that the defendant had such knowledge; and knowledge is something more than a suspicion. Moreover, circumstances which would create a strong suspicion in the mind of one man might have little significance for another, and one is not to be convicted of a crime because he is of a less suspicious nature than the ordinary man, and where, therefore, he may have acted in entire good faith in the face of conditions which might have put another upon his guard.' "
We come next to consider whether or not the excerpt from the charge of the court to which exception are made herein, falls within the rule in Von Sprecken v. State, supra. The essential ingredients of the offense of receiving stolen goods under Code 26-2620 and 26-2621, and Suggs v. State, 59 Ga. App. 394 (1 S. E. 2d 39), are: "(1) that the accused bought or received the goods, (2) that the goods had been stolen by some person other than the accusued, (3) that at the time of so doing the accused knew the same had been stolen, (4) that in so doing he acted with criminal intent." It is conceded by counsel for the defendants that the first two essentials of this offense were proven. the remaining questions are whether or not the defendants received the cars knowing them to have been stolen, and whether or not they did so with criminal intent. See Austin v. State, supra. To determine this question, it will be necessary to consider whether the excerpt from the charge dealt with in special ground one is reversible error under the principles of law announced in Von Sprecken v. State, supra. Upon an analytical comparison of the charge in the Von Sprecken case with the charge in the instant case, we think it is evident that the excerpt from the charge in the instant case is not afflicted with the vice in the Von Sprecken case. In the Von Sprecken case the court charged that the accused was to be judged according to the judgment of a reasonable man, whereas the charge should have limited guilty knowledge to such knowledge as the defendant himself, according to his own limitations, would possess, and not under a general rule. See Wren v. State, 70 Ga. App. 510 (28 S. E. 2d 782); Jacobs v. State, 71 Ga. App. 808 (32 S. E. 2d 403); Austin v. State, supra; and Birdsong v. State, 120 Ga. 850 (3) (48 S. E. 329). The assignment of error in this special ground is without merit. Here the court charged the jury in substance that knowledge was essential, and that this knowledge might be inferred from circumstances such as would alert a reasonable man that the goods were stolen. In the Von Sprecken case knowledge was not charged as an essential element of the crime, but the judge there substituted for this requirement "circumstances . . . such as to lead a reasonable man to believe they were stolen." Accordingly, the difference between the two cases is that, while here the essential element of knowledge that the goods were stolen was charged, together with the manner in which they jury might determine the fact, in the Von Sprecken case knowledge was not charged at all, but the trial court inadvertently substituted in lieu of this element of the offense the circumstances themselves which might or might not authorize the jury to draw the inference. The error assigned in this special ground is without merit.
Judgment affirmed. Townsend and Carlisle, JJ., concur.
Howard, Slaton & Holt, for plaintiffs in error.
Saturday May 23 03:13 EDT

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