Opinion
37317.
DECIDED SEPTEMBER 15, 1958.
Receiving stolen goods. Spalding Superior Court. Before Judge McGehee. June 6, 1958.
R. L. Addleton, for plaintiff in error.
Andrew J. Whalen, Jr., Solicitor-General, contra.
The court erred in denying the amended motion for a new trial.
DECIDED SEPTEMBER 15, 1958.
Clarence B. Jackson was indicted by the grand jury of Spalding County and subsequently found guilty for unlawfully buying and receiving 48 gallons of paint and various hardware materials of the value of $494 from one Willie "Buck" Smith who was previously convicted on an indictment for larceny from the house charging him with stealing the said property from West Griffin Lumber Company. The defendant filed a motion for new trial which was denied by the Judge of the Superior Court of Spalding County, to which judgment the defendant expected and filed his bill of exceptions in this court.
The evidence shows substantially as follows: The indictment charging Willie Smith with larceny from the house together with his plea, the verdict and the sentence was tendered into evidence without objection. Then Willie Smith testified that he sold paint and other items which he had stolen to Mr. Clarence Jackson from time to time for various amounts of money and that he delivered the items to Mr. Jackson at places other than the defendant's place of business.
Hollen Mobley testified that Willie Smith worked for him five or six months in 1957; that after he left his employ he missed some paint and some other items from his place of business, West Griffin Lumber Company; that Willie Smith was arrested and subsequently missing paint and hardware were located at Clarence Jackson's place in concealed places such as in paper bags, stored in cabinets and on shelves, in old ice cream boxes, five or six cases of paint stacked up with a dresser skirt around them, and under the bed. On cross-examination the same witness testified that the paint, etc., was not out on shelves or in sight; that the name on the paint cans had been painted over so the name was illegible; that some of his paint cans had been marked and he could positively identify it as his paint.
Ralph Simmons, a deputy sheriff, testified substantially the same as Hollen Mobley in regard to finding the stolen goods in the defendant's place of business in concealed places, and further stated on cross-examination that the defendant was very cooperative and that his reputation was good as far as he knew.
Lamar Conner testified substantially as to the list of items located in the possession of the defendant and corroborated the testimony of the deputy sheriff and Mr. Mobley.
The defendant in his statement admitted having bought the paint and hardware from Willie Smith but denied having known it was stolen and denied having transacted any business with him at any place other than his own place of business.
Several witnesses testified as to the character and general reputation of the defendant which they said was good.
1. The evidence is sufficient to sustain the judgment as to the general grounds.
2. We will treat special grounds 1 and 2 together, since they are very closely interrelated. Special ground 1 assigns error because it is alleged that the court erred in not giving to the jury the following charge: "That said defendant could not be convicted, and convicted [sic] under the indictment against Willie Buck Smith, the principal thief in said case, to wit: The six rolls of screen wire, which movant was convicted under in the indictment against movant, because it was not alleged in the indictment against Willie Buck Smith, and said principal thief, to wit: Willie Buck Smith, had never been convicted for stealing the six rolls of screen wire, further, that said court erred in not charging, to the jury, that movant could not be tried and convicted, for any goods alleged in the indictment against the principal thief, Willie Buck Smith, that was not alleged in the indictment against movant, all of which was highly prejudicial as against the defendant, now movant in this case."
Special ground 2 assigns error because it is alleged that the court erred in giving to the jury the following charge: "Buy and receive from one Willie Buck Smith, the following described property, to wit: 48 gallons of paint, assorted colors, all being William Armstrong Smith paint; 4 rolls of aluminum screen wire; 2 rolls of galvanized screen wire, of the value of $494, the same being the property of H. S. Mobley and J. W. Mobley, doing business as West Griffin Lumber Company, and having been unlawfully stolen by said Willie Buck Smith from the warehouse of said H. S. Mobley and J. W. Mobley, doing business as West Griffin Lumber Company, the said Clarence B. Jackson knowing said property above described was stolen when he bought and received it from said Willie Buck Smith, and the said Willie Buck Smith, the principal thief, was convicted at the October term, 1957, of Spalding Superior Court, on an indictment for larceny from the house, charging him with stealing said property. That the foregoing charge to the jury was misleading, and highly prejudicial to defendant, because nowhere in said indictment against the principal thief referred to in the charge of the court, did the indictment allege that any screen wire was stolen by the said Willie Buck Smith, nor was he convicted of having stolen any screen wire from H. S. Mobley and J. W. Mobley, doing business as West Griffin Lumber Company. That the court further erred in the above charge to the jury, because said state indicted the said Clarence B. Jackson under Code § 2620 of the Ann. Code of Georgia, 1933, and relied upon the indictment against Willie Buck Smith in the trial of said case against the defendant, Clarence B. Jackson, movant in this motion."
In view of the whole charge of the court as applied to the evidence in the case, we can not see that failure to charge, as set out in special ground 1, was harmful, nor can we see that the excerpt from the charge of the court to which reference is made in special ground 2 was harmful to the defendant. It follows that special grounds 1 and 2 are not meritorious.
3. Special ground 3 assigns error in that it is alleged that the indictment against the said defendant was fatally defective because it shows on its face that the defendant was indicted before the principal thief who was convicted of the offense of larceny, the indictment against the principal thief having been returned into open court October 8, 1957, on the same date the defendant was indicted, but the principal thief was not tried and convicted until October 14, 1957. The record shows on its face that the principal thief was not tried and convicted until after the defendant was indicted. In Smiley v. State, 23 Ga. App. 317 ( 98 S.E. 125) the headnote reads as follows: "One charged with buying or receiving goods, knowing them to have been stolen, can not be indicted and punished until after the conviction of the principal offender, or until it appears that the principal offender can not be taken so as to be prosecuted and convicted. It follows that the principal and the `accessory after the fact' can not be jointly indicted, where the prosecution is under § 168 of the Penal Code of 1910." This same principle of law is reiterated in Licette v. State, 75 Ga. 253 (3) as follows: "The receiver of stolen goods, knowing them to have been stolen or feloniously taken, is an accessory after the fact, and the principal should be prosecuted and convicted before the trial and conviction of the receiver; but where the indictment charged that the principal was unknown to the grand jury, so that he could not be taken and prosecuted to conviction, the receiver could be prosecuted and convicted alone." See also Johnson v. State, 96 Ga. App. 151 ( 99 S.E.2d 484). In Harris v. State, 191 Ga. 243 ( 12 S.E.2d 64) the Supreme Court states that in dealing with the offense of receiving stolen goods the indictment and conviction of the principal thief is a prerequisite to the conviction of the defendant for receiving stolen goods. Special ground 3 is meritorious.
Judgment reversed. Townsend and Carlisle, JJ., concur.