Opinion
39778.
DECIDED OCTOBER 16, 1962.
Receiving stolen goods. Gwinnett Superior Court. Before Judge Pittard.
Emmett O. Dobbs, Jr., Dudley S. Hancock, Daniel Duke, for plaintiff in error.
Jack Holland, Solicitor General, contra.
"If the prosecutor states the offense with unnecessary particularity, he will be bound by that statement and must prove it as laid." Hightower v. State, 39 Ga. App. 674 (2) ( 148 S.E. 300).
DECIDED OCTOBER 16, 1962.
The defendant, Bennie Allen, was tried and convicted for receiving stolen goods and thereafter his motion for new trial based on the usual general grounds and two special grounds was overruled, and he assigns error on such judgment adverse to him.
1. The first special ground is a mere elaboration of the usual general grounds and will not be considered separately.
The indictment charged the defendant with receiving the described personalty from Thomas Wesley West, that the said Thomas Wesley West had stolen the property from the place of business of Elmer Jones and that the said Thomas Wesley West had been convicted for the theft of the described property.
On the trial of the case the prior conviction of West for stealing the personalty was proven as is required in order to convict the defendant charged with receiving stolen property in cases where the principal thief is known (see Ford v. State, 162 Ga. 422, 134 S.E. 95), and while it is not necessary to allege or prove that the accused received the property from the principal thief (see Stanley v. State, 97 Ga. App. 828, 831, 103 S.E.2d 591), yet where it is so alleged the State is bound by the allegations in the indictment and must prove its case as laid or no conviction is authorized. See Smith v. State, 185 Ga. 365 ( 195 S.E. 144); Simpson v. State, 35 Ga. App. 592 ( 134 S.E. 328); Hightower v. State, 39 Ga. App. 674 (2) ( 148 S.E. 300); Youngblood v. State, 40 Ga. App. 514 ( 150 S.E. 457); Wright v. State, 52 Ga. App. 202 ( 182 S.E. 862); and citations.
In Gaspin v. State, 76 Ga. App. 375 ( 45 S.E.2d 785), this burden of proof was carried by showing that the stolen property, alleged to have been received by the defendant from the principal thief, was received from the principal thief by the defendant's co-conspirator, and the act of the co-conspirator of the defendant was the act of the defendant. In Tucker v. State, 94 Ga. App. 468, 473 ( 95 S.E.2d 296), the court was dealing only with a charge authorized by the evidence.
In the present case there was no evidence that the defendant received the stolen property (found in his place of business), from the principal thief as alleged in the indictment. The principal thief (who had been convicted), testified that he had not sold the personalty to the defendant, and there was no other evidence that the personalty had been received by the defendant from West. There was a fatal variance between the allegations and the proof and the judgment overruling the motion for new trial must be reversed.
2. The one other ground of the amended motion for new trial will not be considered as it complains of an event which transpired on the first trial and which will probably not recur on another trial.
Judgment reversed. Frankum and Jordan, JJ., concur.