Lockett v. State

• Decision Date: 10 April 1980
• Docket Number: No. 59095,59095
• Citation: 266 S.E.2d 236,153 Ga.App. 569
• Parties: LOCKETT v. The STATE.
• Court: Georgia Court of Appeals

Page 236

266 S.E.2d 236

153 Ga.App. 569

LOCKETT v. The STATE.

No. 59095.

Court of Appeals of Georgia.

Argued Jan. 15, 1980.

Decided Feb. 6, 1980.

Rehearing Denied Feb. 22, 1980.

Certiorari Denied April 10, 1980.

Charles R. Sheppard, Augusta, for appellant.

Richard E. Allen, Dist. Atty., Steven L. Beard, Asst. Dist. Atty., for appellee.

BANKE, Judge.

Appellant was convicted of theft by taking, based on an indictment which alleged the unlawful entry into the warehouse with the intent to steal. The burglary occurred sometime between Friday evening, June 16, 1978, and Monday morning, June 19, 1978. Two men were seen in a wooded overgrown area behind the warehouse, loading furniture into an automobile. The car's license plate number eventually led police to the appellant's home, where some of the furniture was located.

Appellant denied any knowledge or participation in the break-in, claiming instead that he had found the furniture in the overgrown area and had considered it abandoned. The appellant testified that this took place on the Thursday after the weekend of the break-in. A state's witness who saw the two men putting furniture in the car testified that this occurred on the Monday morning following the break-in. The jury returned a verdict of guilty of theft by taking.

Appellant contends on appeal that the trial court erred in charging on theft by taking as a lesser included offense, that there was a fatal variance between the offense charged in the indictment and the offense of which he was found guilty, and that the jury's finding of not guilty to burglary is repugnant to its finding of theft by taking. Held :

1. The state's case against appellant relied upon the rule "long established in this state that where a theft, whether by simple larceny, burglary, or robbery, is proven, that recent unexplained possession of stolen goods by the defendant creates an inference . . . of fact sufficient to convict. This is true without direct proof or other circumstantial evidence that the defendant committed the theft." Smart v. State, 147 Ga.App. 117, 118, 248 S.E.2d 185, 186 (1978). In this case the evidence is uncontradicted that the victim's warehouse was entered unlawfully and that his furniture was taken. Theft by taking is a lesser included offense to burglary. See Baker v. State, 127 Ga.App. 99, 192 S.E.2d 558 (1972). "The trial judge . . . may of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation." His failure to do so upon request by either the state or the defendant would be error if the evidence warrants such charge. State v. Stonaker, 236 Ga. 1, 222 S.E.2d 354 (1976). In this case there was evidence to support this theory of guilt, and the charge was properly requested by the state.

2. Likewise, appellant's contention that the jury's verdict was self-contradictory is without merit. The jury's failure to find beyond a reasonable doubt that appellant burglarized the warehouse is not repugnant on the facts of the case to its finding of guilt to theft by taking. There was evidence that packing paper and boxes were found in the area where appellant testified that he had found...