27598 | Ga. Ct. App. | Jun 8, 1939
Lead Opinion
The indictment charged the defendant with buying and receiving from E. R. Knox and Howard Stamey one Oldsmobile radio, one Oldsmobile automobile electric clock, and one Oldsmobile automobile horn, of the value of $109, the personal property of Z. H. Storey, said property having been stolen by Knox and Stamey from a certain 1937-model Oldsmobile two-door sedan automobile belonging to Storey, knowing at the time when he bought and received the goods that they were stolen. Knox and Stamey had pleaded guilty of the theft of the automobile which had been equipped with the stolen goods, and said plea of guilty had been entered at the October term, 1937, of the superior court of Turner County; it being alleged that the goods so received by the defendant were a part and parcel of the automobile stolen by Knox and Stamey and to which theft they had pleaded guilty. The defendant demurred to the indictment, on the ground that it failed to allege where and when the property which the accused was alleged to have bought was stolen, whether in Thomas County or some other county, or whether it was within the period of the statute of limitations. He further demurred to the allegation that the defendant knew the goods were stolen at the time he received them, on the ground that it was a mere conclusion, and that no facts were alleged upon which such conclusion was based.
The court properly overruled the demurrers. The crime of receiving stolen property is a separate crime. Knowledge that the goods are stolen is an essential element. The place where the stolen goods were received fixes the venue. It was alleged that the goods were received in Thomas County on September 3, 1937. “It was not material to allege that the breaking and stealing occurred in the county of the trial, if it were charged that the knowingly receiving was done there.” Licelte v. State, 75 Ga. 253 (5-a). The time of the alleged reception of the goods is alleged, and that was within the period of the statute. It was also alleged that the principal thieves had pleaded guilty in Turner County, Georgia. The fact of this indictment and plea is of itself a sufficient allega
Complaint is made that on the trial the defendant was required to strike his jury from a list of twenty-four names on the panel, and was limited to seven peremptory challenges. It is insisted that the crime charged is a felony, that the punishment therefor exceeds four years, that the defendant was entitled to twenty peremptory challenges, and that the action of the court was a denial to him of a statutory privilege. The indictment charges in effect that the defendant bought from the principal thieves parts or accessories of an automobile which they had stolen, and to which theft they had pleaded guilty. Before 1916 the theft of an automobile itself was a simple larceny, punishable as for a misdemeanor. Since that time, as provided in the Code, § 26-2603, the theft of an automobile is a felony, punishable by imprisonment for not less than one nor more than five years. Undoubtedly one who receives an automobile which he knows has been stolen is also guilty of a felony. The theft of parts or accessories of an automobile is still simple larceny, and is punishable as for a misdemeanor, as provided in the Code, § 26-2625. The plaintiff in error contends that the provision of § 26-2620 that persons receiving or buying stolen goods shall be punished the same as the original thief should be interpreted to mean that the theft of an automobile or any p/urt of an automobile should be treated as a felony, and that the receiving of any part of a stolen automobile constitutes such recipient a felon. Unless we accept this interpretation, there was no error on the part of the trial judge in treating the offense here charged as a misdemeanor. The Code, § 26-2603, makes the theft of an automobile, or other like vehicle, a felony. It does not make the theft of its parts a felony. The
There is no merit in the contention that there was a variance between the allegata and the probata. The indictment alleged that the radio, horn, and electric clock were parts of a certain 1937-model Oldsmobile two-door sedan automobile which had been stolen, and that the principal thieves had entered a plea of guilty of such theft. This allegation was proved by the testimony of the owner of the car which was stolen, and also by the testimony of the principal thieves. It is insisted that the indictment against the principal thieves, to which they pleaded guilty, referred to "one Oldsmobile sedan automobile,” and that there was no proof "of two doors” on said automobile, and that the word "sedan” imports four doors. It is shown beyond dispute, that, whether the automobile be of “two doors” (tudor) or not, the parts were taken from the automobile which was stolen in Turner County, and that but one automobile was involved, an Oldsmobile, 1937-model. It is alleged to have been a "two-door sedan,” the property of Z. H. Storey. The principal thieves swore that they stole Storey’s automobile, and pleaded guilty to its theft. Storey recovered it from their possession, and the parts taken therefrom from Sampson’s possession. There is no dispute as to the identity of the car stolen, or as to the parts received being the parts alleged and described in the indictment.
The remaining assignments of error are without merit. The court did not err in overruling the motion for new trial.
Judgment affirmed.
Rehearing
ON MOTION ROE REHEARING.
The plaintiff in error insists strenuously that this court, by allowing this defendant to be tried for a misdemeanor instead of for a felony, has violated the letter and the spirit of former decisions of the Supreme Court and of this court. The Licette case, cited in the original opinion, is relied on in support of his motion. In that case the defendant was charged with receiving twelve sides of meat, knowing them to have been stolen from a freight-car which had been broken into. The-Code, § 26-