¶1dissenting.
¶2There is not a particle of evidence in this case tending in any manner to connect the defendant with the alleged burglary other than an alleged recent possession by him- of some of the goods stolen, unsatisfactorily accounted for. His conviction is, therefore, dependent upon the. rule of law that upon the trial of a defendant charged with burglary, when a breaking is shown and the defendant is found in recent possession of the goods ■stolen, the possession unexplained to the satisfaction of the jury, the jury is authorized to infer his guilt. The judge charged the *406jury as follows: “Where a burglary has been committed and property which was in the house at the time of the burglary is soon thereafter, or recently thereafter, foimd in the possession of one who is unable to account satisfactory for its possession (of-which explanation you are the sole judges), it raises a presumption of his guilt.” This portion of the charge instructed the jury that it was their duty as a matter of law to convict the defendant on such evidence. The charge in this respect was erroneous and contrary to law, in that such evidence did not demand a conviction, but merely authorized the jury, in its discretion, to convict. This error was not cured by the judge immediately thereafter further stating in his charge that “all of these matters are for the jury, under all the facts and circumstances of the case, considering the nature 'of the property, the length of time which had elapsed after the alleged burglary, the explanation offered by the defendant, if any, for his possession, if he was in recent possession of them, or any of the articles, if you should believe the property was stolen from the house at the time, and that a burglary, was committed as charged in the indictment, as previously stated to you.” Since the defendant’s guilt depended entirely upon a proper application of the rule of law which the judge attempted to give in charge, the charge in this respect should have been clear and free from any ambiguity or misconstruction. The additional qualifying language was susceptible to the construction that if the jury were not satisfied with the explanation of recent possession offered by the defendant, then the jury should find him guilty, and it would be obligatory upon them to bring in a verdict to that effect; whereas the true rule is that under such circumstances the jury would only be authorized, in its discretion, to find the defendant guilty. The law is well settled that such prima facie evidence of guilt merely authorizes, and does not demand a conviction. Such evidence is not of itself necessarily proof of guilt. It creates no presumption of law against the defendant, and does not, as a matter of law, require his conviction. In the case of Gravitt v. State, 114 Ga. 841, where the court below charged the jury that where, under such a state of facts, the accused failed to account for the alleged stolen property “to the satisfaction of the jury, the law presumes that he is the guilty party,” this charge was held to be error. Mr. Justice Lewis, in that case, referring to this language, said, “-This *407charge states too broadly the rule applicable to recent possession oí stolen property, and it was error manifestly prejudicial to the accused.” This language was identical in substance and effect, with that portion of the charge referred to and excepted to in the instant case.
¶3After all, it is purely a question of a construction of the judge’s charge. Do we or do we not construe the language as submitting to the jury the proposition as a presumption of law, or as a presumption of fact ?” From an inspection of the original record in the Gravittcase, cited supra, the language of the charge as a whole comes nearer submitting the proposition as a presumption of fact than does the charge in the case we are now called upon to decide. As I plant my dissent upon the authority of the Gravittease, I quote at length from the charge in that ease: “A rule of law is that when there has been a larceny, a breaking and entering and taking away the goods of another, and some party is found to be in the recent possession of these goods soon after they were stolen, soon' after the burglary is committed, or larceny was committed, then if he fails satisfactorily to account for his possession to the satisfaction of the jury, the jury has the right to presume he is the guilty party, but if he shows satisfactorily to the jury that his possession is lawful, then nothing may be presumed against him as to his guilt. Now, in weighing the subject, all that the defendant said is to be considered by the jury. What did he say? Did he make different statements? Did he say whom he got them from, and always say the same, or was there a difference- about it? Was there any reason for telling it differently ? Examine it all. If it is satisfactory to your minds, if he made satisfactory explanations, then possession would not be proof of his guilt, but if it is not satisfactory, then possession would be proof of his guilt; but if it is not satisfactorily explained, then the law authorizes you to presume that he is the guilty party, because if he got them lawfully he could account for their possession, and if he didn’t the law presumes he is the guilty party; what I mean to say is this, if he has the goods in his possession, then he must account for that possession, and when he does, when he accounts for it to the satisfaction of the jury, then there is no presumption against him that he was the guilty party; but if he fails to account for it to the satisfaction of the jury, the law presumes he is the guilty party.” Nota bene the *408following expressions in the charge in that ease: “If he fails satisfactorily to account for his possession to the satisfaction of the jury, the jury has the right to presume he is the guilty party. . . . If it is satisfactory to your minds, if he made satisfactory explanations, then possession would not be proof of his guilt, but if it is not satisfactory, then possession would.be proof of his guilt, but. if it is not satisfactorily explained, then the law authorizes [italics mine] you to presume he is the guilty party.” I am willing to stand with Mr. Justice Lewis, the great jurist who wrote the opinion in that case. I feel that my position is well fortified when I can rely upon him as authority.
¶4This rule is easily misunderstood, and in cases of this kind, where a conviction depends entirely upon its proper application, it should be clearly stated to the jury. There should be no language in the charge from which the jury might infer that, as a matter of law, such testimony would establish guilt, or would, in the language excepted to, “raise a presumption of guilt.” The judge in his charge laid down an erroneous proposition of law, and in his subsequent language failed to correct it or so far explain it’ as to clearly deprive it- of its erroneous meaning. This was highly prejudicial to the rights of the accused, and a new trial should for this reason be granted. ' • ■