Blocker v. State

¶1specially concurring. The judge in the instant case charged the jury as follows: “ Where such property that has recently been stolen and is found in possession of another and such person fails to make a satisfactory explanation of this possession of it, then that would raise a presumption of guilt.” Speaking for myself I repeat what was said in Cook v. State, 49 Ga. App. 86, 88 (174 S. E. 195), that such a charge is likely to confuse the jury for they are likely to construe it as conveying the idea that the law raises a presumption of guilt from the recent possession, that the defendant committed the offense of simple larceny. “The law raises no presumption; it simply permits the jury to infer guilt from the fact of recent possession, unaccounted for.” Lewis v. State, 120 Ga. 508 (48 S. E. 227). “Where a judge charges that the defendant enters upon the trial of the case with a presumption of innocence in his favor, and then, later on, charges that recent possession raises a presumption of the defendant’s guilt, this, while not erroneous under some of the decisions, it seems to us might be confusing to the jury. We therefore think it would be clearer to the jury if the judge avoided the word presumption in this latter connection and used some such expression as The law permits the jury to infer guilt from the fact of recent possession unaccounted for,’ thus bringing out the idea that such possession authorizes a verdict of guilty but does not require it.” Cook v. State supra. I think this form of charge in the instant case is unfortunate and is likely to unwittingly do the defendant an injustice.