Gearin v. State
| Decision Date | 03 January 1973 |
| Docket Number | No. 2,No. 47556,47556,2 |
| Parties | Phil GEARIN v. The STATE |
| Court | Georgia Court of Appeals |
Glenn Zell, Atlanta, Ga., for appellant.
Lewis R. Slaton, Dist. Atty., Joel M. Feldman, J. Melvin England, Darryl B. Cohen, Atlanta, for appellee.
Syllabus Opinion by the Court
Phil Gearin was convicted of burglary and carrying a pistol without a license outside his house, and outside his house concealed, and was sentenced to eleven years in the penitentiary. He appeals from an order overruling his amended motion for new trial. Held:
1. Appellant alleges 'The court erred in failing to charge the lesser included offense or included offense of receiving stolen goods as it was demanded by the evidence.'
The allegation presents two questions for the courts' consideration, (1) Is receiving stolen goods a lesser included offense of the offense of burglary? The general rule concerning lesser included offenses appears to be 'To warrant conviction of a lesser offense on an indictment or information charging a greater offense, it is essential that the allegations describing the greater offense contain all essential averments relating to the lesser offense or that the greater offense necessarily include all the essential ingredients of the lesser.' 42 C.J.S. Indictments and Informations § 275.
In Gilbert v. State, 65 Ga. 449, 450, the Supreme Court of Georgia Held that receiving stolen goods knowing them to be stolen is
Under the Criminal Code of Georgia, Section 26-1806, theft by receiving stolen property (a misdemeanor) requires a receiving, disposing or retaining of stolen property which the accused knows or should know was stolen (Ga.L.1968, pp. 1249, 1292; 1969, pp. 857, 859) while the offense of burglary (Criminal Code § 26-1601) requires an entering or remaining in a building without authority with intent to commit a felony or theft therein. Nowhere is there an allegation of receiving, disposing or retaining of stolen property.
Phrased in other terms, it is clear that the offense of theft by receiving stolen property contains elements not present in the offense of burglary. Only an intent to commit theft is required-not the completed act.
That receiving carries a possible lower minimum sentence is irrelevant. Plummer v. State, 126 Ga.App. 482, 483, 191 S.E.2d 333.
2 Was the issue of receiving stolen property properly raised by the evidence to require the trial judge to instruct on the issue of lesser included offense? Assuming arguendo that receiving stolen property is lesser included in the offense of burglary, this point was raised only by defendant's unsworn statement at trial. He neither offered nor elicited any evidence, direct or circumstantial, in corroboration. There was no request to charge and the court had no duty to do so. Darby v. State, 79 Ga. 63(2), 3 S.E. 663; Hayden v. State, 69 Ga. 731(3); Burgess v. State, 210 Ga. 91, 78 S.E.2d 33; wilson v. State, 124 Ga.App. 403, ...
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