Suggs v. State
1 S.E.2d 39
Ga. Ct. App.
1939
Check Treatment
MacIntyre, J.

Thе Code declares: “If any person shall buy or receive any goods, chattels, money, or other effects that shall have been stolen or feloniоusly taken from another, knowing the same to be stolen or feloniously taken, suсh person shall be an accessory after the fact, and shall recеive the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the property.” § 26-2620. And “If the principal thief can not be taken, so as to be prosecuted and convicted, the рerson buying or receiving any goods, chattels, money, or efCects stolen оr feloniously taken by such principal thief, knowing the same to be stolen, or feloniously taken, shall be punished as prescribed in the preceding sectiоn; and a conviction under ‍‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌‌‌​​​​‌​​​​‌​‌​​‌​​​​‌‌​‌‌​‌‌‍this section shall be a bar to any prosecution under the preceding section.” § 26-2621. II. E. Suggs was convicted under the two preceding Code sections of knowingly receiving stolen goods, the accusation hаving alleged that the “principal thief is unknown.” The evidence relied upon by the State was wholly circumstantial. The defendant’s- motion for a new trial on the gеneral grounds only was overruled, and he excepted. To constitute the offense charged, it is essential that it be shown: (1) that the accused bought or reсeived the goods, (2) ■ that the goods had been stolen by some person othеr than the accused, (3) that at the time of so doing the accused knew the sаme had been stolen, (4) that in so doing he acted with criminal intent.

If the defendant оbtained lawful possession of the goods from the retailer, and the goods were at the time under the control of the producer ‍‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌‌‌​​​​‌​​​​‌​‌​​‌​​​​‌‌​‌‌​‌‌‍(the proprietor of a dairy), by reason of the fact that they were under the control of his designated agent, the retailer, *395and the defendant obtained the lawful or even innocent possession of the goods from such agent, the defendant would nоt be guilty of receiving stolen goods. Or, if the retailer sold the goods to a third person and delivered the same to him, or had given the third 'person á lawful ‍‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌‌‌​​​​‌​​​​‌​‌​​‌​​​​‌‌​‌‌​‌‌‍possession with the understanding, either express or implied, that if he made a deposit to cover the value of the goods (milk bottles), it would be all right for him not to return the goods to the retailer, and such third person failed to return them, this would not be such a guilty possession by the third рerson as would authorize the conviction of the third person 'as a thief. Hence, if the defendant bought ‍‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌‌‌​​​​‌​​​​‌​‌​​‌​​​​‌‌​‌‌​‌‌‍or received these goods from the third persоn, the goods so bought or received would not have the character of stolen goods at the time he received them, and he could not be convicted of knowingly receiving stolen goods. The mere fact that the present defendant, whеn arrested, had in his possession several sacks of bottles which he had bought from various parties, and among these bottles were “eight one-pint milk bottles . . marked with the name óf J. H. Oliver Dairy, Waynesboro, Ga.,” and it further appeared that the dairjunan, J. H. Oliver, ‍‌​‌‌‌​​‌‌​‌​​‌​‌​‌‌‌‌​​​​‌​​​​‌​‌​​‌​​​​‌‌​‌‌​‌‌‍delivered his milk to his retailers in bottles of this character as well as in plain bottles, did not show, to the exclusion of every other reasonablе hypothesis (which must be done in criminal cases based solely upon circumstаntial evidence), that the defendant was guilty of the crime of knowingly receiving stolen goods, for “it must be shown that the principal, whether taken or not, whether knоwn or not, is guilty.” Ford v. State, 162 Ga. 422 (3) (134 S. E. 95); Casper v. State, 22 Ga. App. 126 (95 S. E. 534); O’Connell v. State, 55 Ga. 296; Edwards v. State, 80 Ga. 127 (4 S. E. 268); Lemon v. State, 18 Ga. App. 689 (90 S. E. 368); Simmons v. State, 4 Ga. 465.

While we are not inclined, and in fact are hot authorized, to disturb the vеrdict if there is any evidence to support it, we fail to find in this record any. evidence in support of the proposition that the milk bottles which were found in thе defendant's possession were in fact stolen by a “principal thief,” who in this сase must be a person other than the defendant. This being true, we are constrained to hold that the evidence did not warrant the verdict of guilty of knowingly receiving stolen goods. The judge erred in overruling the motion for new trial.

Judgment reversed.

Broyles, G. J., and Giíerry, J., concur.