Stanley v. State

• Decision Date: 23 June 1958
• Docket Number: No. 37148,No. 2,37148,2
• Citation: 97 Ga.App. 828,104 S.E.2d 591
• Parties: R. E. STANLEY v. The STATE
• Court: Georgia Court of Appeals

Page 591

104 S.E.2d 591

97 Ga.App. 828

R. E. STANLEY v. The STATE.

No. 37148.

Court of Appeals of Georgia, Division No. 2.

June 23, 1958.

Rehearing Denied July 8, 1958.

Wesley R. Asinof, William E. Spence, J. O. Ewing, Marvin O'Neal, Jr., Stonewall Dyer, Atlanta, for plaintiff in error.

Paul Webb, Sol. Gen., Carl Copeland, Thomas R. Luck, Jr., Eugene L. Tiller, Atlanta, for defendant in error.

Syllabus Opinion by the Court.

TOWNSEND, Judge.

1. On the trial of the defendant for receiving stolen goods knowing them to have been stolen, undisputed testimony that there was a burglarious entry of a furniture store and removal of certain articles of furniture, plus testimony of an accomplice of the defendant that under the defendant's direction he proceeded with him to the receiving yard in the rear of the store and found a truck loaded with the furniture which he drove away and delivered to the defendant at a place designated by the defendant (this testimony being corroborated in various particulars by other witnesses) together with evidence that the furniture in question was later found in the possession of the defendant, is sufficient to authorize a conviction.

2. It is the contention of the defendant that the State has the burden of proving that the defendant was not the principal thief, and that this burden has not been carried, for which reason the defendant should be acquitted. The indictment against this defendant was originally brought in two counts. He was acquitted upon the first trial of the count charging him with burglary, and a new trial granted as to the other count. See Stanley v. State, 94 Ga.App. 737, 96 S.E.2d 195. On the second trial, the State alleged and proved a burglarious entry of the store and an asportation of the merchandise to a truck located on the rear of the premises. The evidence shows a completed crime of burglary and that the merchandise had been removed from the building at the time the defendant made his appearance.

It has almost universally been held, under both common law and statutory principles, that one cannot be convicted of receiving stolen goods to the theft of which he was a principal, but in no reported case has this rule been applied so as to place on the State the burden of proving, where the thief is unknown, that such thief was not the defendant. Where the principal thieves are known, and where it appears that the defendant had prior knowledge that the goods were to be stolen or, in some cases, aided in procuring the theft, but was not present at the initial caption and asportation, the defendant may be convicted of either but not both crimes, at the election of the State. State v. Tindall, 213 S.C. 484, 50 S.E.2d 188; State v. Sheeley, 63 Nev. 88, 162 P.2d 96; Steele v. State, 213 Miss. 739, 57 So.2d 574; People v. Daghita, 301 N.Y. 223, 93 N.E.2d 649; Evans v. State, Tex.Cr.App., 211 S.W.2d 207; Clark v. State, 131 Tex.Cr.R. 1, 95 S.W.2d 1309; Hochman v. State, 146 Tex.Cr.R. 23, 170 S.W.2d 756. See many other cases to same effect cited in 136 A.L.R. at page 1088. Thus where the defendant was approached by thieves who intended stealing certain merchandise from a Government warehouse, and he agreed to buy it prior to the theft, made arrangements for its storage, met the thieves immediately after they had taken the goods at a street corner in Baltimore and conducted them to the warehouse, paying them $300 on account, but later became worried over the Federal investigation and turned the goods back to the thieves, receiving his money back and taking no part in the division of the property, it was held that 'while the appellant's subsequent participation in the transportation of the goods may amount to larceny, it may also be considered as the first active step in the receiving of the property stolen by other persons.' Aaronson v. United States, 4 Cir., 175 F.2d 41, 44. The rule as stated in Wharton's Criminal Law, 12th ed., vol. 2, § 1234, is as follows: 'As an elementary principle, if larceny by the defendant be proved, though the offender appear only to be a principal in the second degree, the charge of receiving falls, because the offenses are substantially distinct, and because there can be no guilty reception unless there be a prior stealing by another. But this reasoning fails, when on an indictment for receiving, proof transpires to show that the defendant was also an accessory before the fact. The offenses are so distinct that one cannot be said to merge in the other, nor is conviction of the one in any way incompatible with conviction of the other. Hence, in defiance of such testimony the defendant, if there be sufficient evidence of guilty receiving, may be convicted of such receiving.' As stated in 136 A.L.R. 1093: 'As to one whom the facts show to be the person who actually did the stealing, there is, of course, no difficulty or controversy in applying the principle that a thief cannot be guilty of the crime of receiving, concealing, or aiding in the concealment of stolen property, and it is only where one accused of receiving stolen property is a mere aider or participant in the commission of the larceny that the question becomes controversial.'

There is no question but that in Georgia, as elsewhere, the State need not show the identity of the principal thief on an indictment for receiving stolen goods where it alleges and proves that such principal thief is unknown. What must be shown is that the principal thief 'whether taken or not, whether known or not, is guilty.' Ford v. State, 162 Ga. 422(3), 134 S.E. 95, 97; Edwards v. State, 80 Ga. 127, 4 S.E. 268; Stripland v. State, 114 Ga. 843, 40 S.E. 993; Wright v. State, 1 Ga.App. 158(1), 57 S.E. 1050; Ford v. State, 35 Ga.App. 655(10), 134 S.E. 353; Gaspin v. State, 76 Ga.App. 375, 379, 45 S.E.2d 785. As stated in the Gaspin case, it is sufficient to allege and prove that the goods were stolen by someone, and it is not even necessary to prove that the receiver acquired them from the original thief.

If the burden were upon the State to prove (as it must prove every essential element of the crime) beyond a reasonable doubt that the defendant could not have been the...