Gaspin v. State

• Decision Date: 31 October 1947
• Docket Number: No. 31636.,31636.
• Parties: GASPIN. v. STATE.
• Court: Georgia Court of Appeals

45 S.E.2d 785

GASPIN.

v.STATE.

No. 31636.

Court of Appeals of Georgia, Division No. 2.

Oct. 31, 1947.

Judgment Adhered to Dec. 20, 1947.

Syllabus by the Court

1. The evidence authorized the verdict.

2. In an indictment for buying and receiving stolen goods the fact that it must be alleged and proved that the principal thief, whether taken or not, whether known or not, is guilty is but a regulation affecting the trial, and such allegations do not constitute allegations of essential elements in the crime charged.

3. Where an indictment is drawn under Code, § 26-2620, charging the defendant with knowingly buying and receiving stolen goods, it is not necessary to prove that the defendant knowingly received the stolen goods from the principal thief, but if it is proved that he received them, knowing them to be stolen, from any person whatsoever, he would be guilty of violating Code, § 26-2620.

Error from Superior Court, Chatham County; D. S. Atkinson, Judge.

Samuel Gaspin was convicted of the offense of receiving stolen goods, and he brings error.

Affirmed.

Samuel Gaspin was indicted for the offense of receiving stolen goods; the jury returned a verdict of guilty, and he was sentenced as for a misdemeanor. The defendant filed a motion for new trial which was based on the general and seven special grounds. This motion was overruled, and the defendant excepted.

It is alleged in the indictment that the defendants did then and there unlawfully buy and receive from Alfonso J. Erwin, Jr., and Wiley Watkins the following described personal property, to wit: cigarettes of the value of $6,750, the same being the property of J. S. Pinkussohn Cigar Company, which said personal property had been stolen, and the said Max Rosenberg and Samuel Gaspin then and there knowing the said personal property to have been stolen, the said Alfonso J. Erwin, Jr., and Wiley Watkins having heretofore, on the 14th day of February, 1946, broken and entered the place of business of J. S. Pinkussohn Cigar Company wherein were stored and contained valuable goods and the said defendants having heretofore been arrested, indicted, tried and convicted as principals in said burglary, said conviction having been had on the 22d day of May, 1946.

The defendant contends that his conviction was illegal because (1) the evidence shows that the defendant did not receive the goods from the original thieves, but received them from Rosenberg and knew nothing whatsoever about where Rosenberg acquired the goods; (2) there is no evidence of a conspiracy or agreement between the defendant and Rosenberg whereby the latter should purchase the goods from the thieves and then turn over a portion thereof to the defendant; (3) under the law of Georgia the receiver of stolen goods is designated as an accessory after the fact and can not be legally convicted unless it is shown that he received the goods from the principal thief or conspired with one who did receive the goods from the principal thief.

There was evidence to the effect that the principal thieves, Erwin and Watkins, pleaded guilty on May 22, 1946, to the offense of stealing the cigarettes in question on February 14, 1946, of the value of $6,750; that Max Rosenberg and Samuel Gaspin, the defendants here, were indicted jointly for buying and receiving from such principal thieves these cigarettes of the value of $6,750; that Rosenberg pleaded guilty to the indictment; that on the same day or the next day after the theft Gaspin sold a large quantity of cigarettes to one Cathey for $1.35 a carton when the open market was $1.53 a carton; that these cigarettes were concealed and locked in the bottom of a cabinet in the defendant's kitchen, which was about 30 feet deep, and were not in the front part of his store; that when city detective Ryan investigated the theft of the cigarettes he asked Gaspin about the cigarettes which were taken from the J. S. Pinkussohn Company; that at first the defendant denied that he had sold such cigarettes but later told the detective that he had received three cases from Rosenberg at $1.25 a carton and had sold them to Cathey for $1.45 acarton; and that at the time of the investigation of Gaspin the detective did not know "who had stolen the cigarettes or who Mr. Rosenberg had bought them from; he [Gaspin] told us that Mr. Rosenberg said that he was overstocked and would sell him the cigarettes at a premium; it was from the information given us by Mr. Gaspin that we arrested Mr. Rosenberg, and then we learned who had stolen them, and they were arrested. When we went to Rosenberg we later related to him what Gaspin had said."

The defendant in his statement to the jury said: "Gentlemen of the Jury: I am not guilty of the charges against me in this case. Mr. Rosenberg, who runs a grocery store, and a brother-in-law to a cousin of mine,...