NICHOLSON v. STATE

NICHOLS, Presiding Judge.

The defendant was tried and convicted of burglary. Thereafter the defendant's motion for new trial, based on the usual general grounds only, was overruled and it is to this judgment that the defendant now excepts. Evidence was adduced of recent possession of a part of the goods, musical instruments, and such recent possession was admitted by the defendant. An explanation of such possession was offered to the jury. The explanation, presented by the defendant in his statement (and by the defendant's wife in sworn testimony), was that the musical instruments were purchased by the defendant from a named individual for cash. Held:

1. Standing alone an explanation of the recent possession by sworn testimony unimpeached and uncontradicted would demand a new trial under the decisions of this court in Law v. State, 106 Ga. App. 782 ( 128 S.E.2d 204); and Cox v. State, 109 Ga. App. 797 ( 137 S.E.2d 516), and cases there cited. However, in the present case there was additional testimony adduced by the State of an unsuccessful effort to locate the person from whom the musical instruments were supposedly purchased; and under the decision of the Supreme Court in Lankford v. Holton, 187 Ga. 94, 102 ( 200 S.E. 243), the jury was authorized to determine the testimony as to the purchase of the musical instruments was "incredible, impossible or inherently improbable" and to find the defendant guilty based upon the recent possession of the stolen property. The trial court did not err in overruling the defendant's motion for new trial.

Judgment affirmed. Eberhardt and Pannell, JJ., concur.