Anderson v. State

• Decision Date: 13 May 1966
• Docket Number: No. 42022,No. 2,42022,2
• Parties: Billy H. ANDERSON v. The STATE
• Court: Georgia Court of Appeals

Page 398

149 S.E.2d 398

113 Ga.App. 670

Billy H. ANDERSON v. The STATE.

No. 42022.

Court of Appeals of Georgia, Division No. 2.

May 13, 1966.

William O. Carter, Hartwell, for plaintiff in error.

Clete D. Johnson, Sol. Gen., Royston, for defendant in error.

Syllabus Opinion by the Court

DEEN, Judge.

1. Error is urged upon the overruling of demurrers to a two count indictment charging that the defendant received from a person unknown an automobile stolen on the same date in South Carolina, knowing the vehicle to have been stolen. The counts differ only in their reference to separate vehicles, stolen from different owners. Felonies of the same general nature, where the mode of trial is the same, may be joined in separate counts of the same indictment. Webb v. State, 177 Ga. 414, 170 S.E. 252; Mitchell v. State, 89 Ga.App. 80, 78 S.E.2d 563.

2. Nor is the indictment bad, as contended, because it may involve the same elements proscribed by Title 18, U.S.C.A. § 2313 making penal the receiving of any motor vehicle 'moving as, or which is a part of, or which constitutes interstate or foreign commerce' knowing it to have been stolen. In the first place it is unclear from its allegations whether the behicles were still in interstate commerce at the time they were allegedly received. Under the Federal statute 'the stolen motor vehicle concealed, sold or disposed of must be moving as, or be a part of, or constituting interstate commerce at the time it is concealed, or disposed of. If it has come to rest so as no longer to be a part of or to constitute interstate commerce, State law regarding stolen property rather than federal law would be applicable.' Hill v. Sanford, 5 Cir., 131 F.2d 417. Secondly, as between the state and federal sovereignties, the usual rule is that even though the same transaction is involved each sovereignty may proceed with prosecution uninfluenced by action of the other. Jolley v. United States, 5 Cir., 232 F.2d 83. 'One act may constitute an offense against both sovereignties, in such a case both the federal and state courts have jurisdiction of the offense unless the Federal Constitution or an act of Congress gives exclusive jurisdiction to the federal courts.' 21 Am.Jur.2d, Criminal Law § 394, p. 412; People v. Welch, 141 N.Y. 266, 36 N.E. 328.

3. The indictments were drawn under Code Ann. § 26-2623 providing that any person receiving goods or chattels 'that shall have been stolen or feloniously taken from another in another State, knowing the same to be stolen or feloniously taken * * * shall, upon conviction therefor, receive the same punishment as would be inflicted on a person convicted of having so stolen or feloniously taken such property in this State.' This statute simply broadened the scope of the crime of receiving stolen goods contained in Code § 26-2620 to instances where the property was originally stolen outside the State of Georgia. O'Neal v. State, 24 Ga.App. 160, 99 S.E. 891. The provisions of Code § 26-2621 relieving the State from the necessity of alleging that the principal thief has been convicted or has pleaded guilty in cases where he cannot be taken and prosecuted apply equally whether the goods were stolen within or without the state. Likewise, it may be alleged that the principal is unknown and cannot be apprehended for that reason; the fact of conviction is but a regulation affecting the trial, but the guilt of the principal is an essential element of the crime of receiving, along with knowledge on the part of the defendant that the goods were stolen. Wright v. State, 1 Ga.App. 158(1), 57 S.E. 1050; Gaspin v. State, 76 Ga.App. 375(2), 45 S.E.2d 785. This is true whether the original theft occurred in Georgia or elsewhere. The county from which the goods were stolen is not material; it is the county where the defendant received them which determines the venue of the trial, and if the offense be alleged in the language of the statute this is sufficient. Licette v. State, 75 Ga. 253(2, 5); Code § 27-701. Also, it need not be alleged or proved that the defendant received the goods directly from the principal thief, provided he received them knowing them to have been stolen. Stanley v. State, 97 Ga.App. 828, 831, 104 S.E.2d 591; Allen v. State, 106 Ga.App. 761, 128 S.E.2d 549. The indictment was not subject to demurrer because it failed to allege the county in South Carolina where the theft occurred, failed to allege that the vehicles were received directly from the principal...