Ford v. State

• Decision Date: 25 June 1926
• Docket Number: 5153.
• Citation: 134 S.E. 95,162 Ga. 422
• Parties: FORD v. STATE.
• Court: Georgia Supreme Court

134 S.E. 95

162 Ga. 422

FORD v. STATE.

No. 5153.

Supreme Court of Georgia

June 25, 1926

Syllabus by the Court.

An indictment, under Pen. Code 1910, § 168, against one for receiving stolen goods, knowing them to be stolen, must allege that the principal thief has been indicted and convicted.

The conviction of the principal is not an element in the crime defined in Pen. Code 1910, § 168, but is a regulation which affects the time when, or the manner in which, a person indicted under said section can be tried. The gist of the offense created by said section is buying or receiving goods with the felonious knowledge that they were stolen.

Before a conviction can be had for the offense created under said section, it must be shown that the principal, whether taken or not, whether known or not, is guilty. The record of the conviction of the principal thief is conclusive evidence of his conviction, but is merely prima facie evidence of his guilt; but the introduction of such record in evidence by the state places the onus upon the accessory of disproving the guilt of the principal.

Where the indictment against a person under said section alleged that the principal thief had been tried and convicted, but where thereafter the conviction of the principal was set aside and a new trial granted, not for any defect in the indictment, but for some error committed in the trial of the case of the principal, which required the grant of a new trial, and where before the trial of the accessory the principal pleaded guilty, and was sentenced thereon, the record in the trial of the case of the principal thief was admissible for the purpose of showing the prima facie guilt of the principal.

(a) A plea of guilty stands upon the same footing as a conviction by a jury, and has the same force and effect as a verdict of guilty.

(b) The averment of the indictment that the defendant had been indicted and convicted was fully shown by the production of the indictment and the conviction; and, where this conviction was set aside by the grant of a new trial, the purpose of requiring such averment and proof was substantially effectuated by a plea of guilty by the principal before the trial of the accessory was begun.

(c) The accessory could waive the conviction of the principal and go to trial on the charge preferred against him; and, where the defendant knew that the conviction of the principal had been set aside by the grant of a new trial, and went into the trial of the case without raising any objection to so doing on the ground that the principal had not been convicted, this amounted to a waiver on his part.

Questions Certified from Court of Appeals.

J. W Ford brought error to the Court of Appeals, which court certified questions to the Supreme Court. Questions answered.

R. D Feagin and T. J. Cochran, both of Macon, for plaintiff in error.

Chas H. Garrett, Sol. Gen., of Macon, for the State.

HINES J.

If any person shall buy or receive any goods which have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be an accessory after the fact, and shall receive the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the property. Penal Code, § 168. If the principal thief cannot be taken, so as to be prosecuted and convicted, the person buying or receiving the goods, stolen or feloniously taken by such principal thief, knowing the same to be stolen or feloniously taken, shall be punished as prescribed in the preceding section. § 169. In Loyd v. State, 42 Ga. 221, Chief Justice Lochrane, who delivered the opinion of the court, said:

"To receive stolen goods, knowing them to be stolen, did not fall under any of the definitions of the common law, and did not constitute the receiver an accessory, but was, in itself, a distinct and separate offense."

In Bieber v. State, 45 Ga. 569, this court held that the section first above referred to creates a distinct offense. While this is so, it is held in Bieber's Case that the defendant "may be indicted as an 'accessory after the fact."' In Jordan v. State, 56 Ga. 92, this court held that-

"An indictment for this offense under section 4488 of the Code [of 1873, now Penal Code, § 168], should allege that the principal thief has been tried and convicted of the offense; if such principal cannot be taken so as to be prosecuted and convicted, then the accessory in receiving the stolen goods should be indicted under section 4489 [Code of 1873] for a misdemeanor."

It is to be noted that section 4489 of the Code of 1873 is not identical with section 169 of the present Penal Code of this state. The ruling in Jordan's Case was followed in Butler v. State, 57 Ga. 610. In Martin v. State, 95 Ga. 478, 20 S.E. 271, it was said that the correctness of the ruling in Jordan's Case "admits of grave doubt," but the principle ruled in Jordan's Case was again positively asserted in Rogers v. Brown, 138 Ga. 750, 75 S.E. 1131. While the writer shares in the doubt expressed by Mr. Justice Lumpkin, we think the principle announced in Jordan's Case has become the settled rule in this state. It is now, therefore, the settled law in this state that an indictment against one for receiving stolen goods, knowing them to be stolen, must allege that the principal thief has been indicted and convicted. Under the facts stated in the first question propounded by the Court of Appeals, the indictment complied with this requirement of our decisions. It was therefore a valid indictment. It was in no sense void.

The conviction of the principal, after the indictment of the accessory, was set aside and a new trial granted, not for any defect in the indictment, but for some error committed in the trial of the case of the principal, which required the grant of a new trial. Thereafter, and before the trial of the accessory, the principal pleaded guilty, and was sentenced upon his plea of guilty. In these circumstances, could the accessory be tried and convicted? It is to be borne in mind that the indictment and conviction of the principal is not an element of the crime of receiving stolen goods, knowing them to be stolen. Section 169 of the Penal Code, which defines this offense, does not make indictment and conviction of the principal an element of this offense. The requirement that the principal shall be indicted and convicted relates to the time when, or manner in which, the accessory can be tried.

In Cantrell v. State, 141 Ga. 98, 101, 80 S.E. 649, 650 Chief Justice Fish, who delivered the opinion of the court,...