Dunn v. State

141 Ga. App. 853 (1977)

234 S.E.2d 687

DUNN et al. v. THE STATE.

53509.

Court of Appeals of Georgia.

Submitted February 28, 1977.

Decided April 6, 1977.

Robert C. Ray, for appellants.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, H. Allen Moye, R. J. Parker, Assistant District Attorneys, for appellee.

McMURRAY, Judge.

Julius Willis Speed, George Speed, and Roy Dunn were indicted for burglary and motor vehicle theft. A verdict of guilty on the burglary count and not guilty on the motor vehicle theft count was returned for all defendants. Julius Willis Speed and Roy Dunn appeal. Held:

1. Appellants' first enumeration of error raises the general grounds. "As to the general grounds, this court is bound by the `any evidence' rule and must accept the state's version of the evidence, as was done by the jury and the trial judge." Franklin v. State, 136 Ga. App. 47, 48 (1) (220 SE2d 60). The evidence presented by the state was sufficient to show that shortly before the burglary the defendants were near the scene of the crime. The day after the burglary defendants were in possession of a television set stolen from the burglarized home and were transporting it concealed beneath a sheet in an allegedly stolen automobile by an indirect route which avoided the scene of the crime. Such evidence of unexplained recent possession of stolen property, together with the unusual circumstances, is sufficient to enable the jury to find beyond a reasonable doubt that defendants committed the burglary.

2. The verdict first returned by the jury was, "We, the jury, find the defendants on count one guilty of conspiracy. On count two, not guilty." This verdict was as to something not charged in the indictment, nor of a lesser grade of the crime actually charged against defendants. Unlike Cross v. State, 124 Ga. App. 152 (1, 2) (183 SE2d 93), in the case sub judice the court properly refused to *854 accept the verdict which was a mere nullity and instructed the jury to withdraw and return with a verdict in accordance with the charge of the court. See also Allison v. State, 110 Ga. App. 266 (3) (138 SE2d 335). The court did not err in refusing to accept the void verdict and in asking the jury to return to the jury room and bring in a verdict in accordance with the court's instruction.

Judgment affirmed. Bell, C. J., and Smith, J., concur.