Opinion
41474.
ARGUED SEPTEMBER 9, 1965.
DECIDED SEPTEMBER 21, 1965.
Larceny of automobile. Fulton Superior Court. Before Judge Dyer.
Alton T. Milam, Ben S. Atkins, for plaintiff in error.
Lewis R. Slaton, Solicitor General, Carter Goode, contra.
1. The general grounds, and grounds 2 and 3 of the amendment to the motion for new trial which are but amplifications thereof, are without merit.
(a) An employee left in charge of a business is responsible for his criminal conduct in connection therewith and cannot rely for justification upon the commands of his superior, unless he acted under coercion.
(b) A conviction for the larceny of an automobile was authorized where it appeared that the defendant was found in possession of portions of the body, the horns, steering wheel or other items, identified as being portions of the vehicle alleged to have been stolen, and indicating that it was disassembled and cut up with acetylene torches.
2. Evidence of similar transactions occurring within reasonable proximity of time to that with which the defendant stands charged is admissible for the showing of knowledge, intent or state of mind.
ARGUED SEPTEMBER 9, 1965 — DECIDED SEPTEMBER 21, 1965.
The defendant was convicted under an indictment charging him with the larceny of a certain Ford Galaxie automobile. The evidence disclosed that he was in active charge of a garage in Atlanta known as Prescott's Garage, and that he had a considerable amount of tools and equipment of his own in the garage. It appeared that the lessee of the premises, for whom the defendant contended he worked as a mechanic, had not been there for some time and that he was in jail in Tennessee on a charge of car theft. Evidence was admitted showing that on the date of his arrest the defendant and a helper were loading the top portion of a Ford Mustang on a trailer which the defendant had rented, and it was identified by Robert F. Carruth as being a portion of a Mustang automobile that had recently been stolen from him.
In a room at the back of the garage, closed off but with an open door, the detectives found portions of the Ford Galaxie which he was charged with having stolen, and in the garage were papers that had been removed therefrom. The owner, William T. Wolfe, testified that a top of a Galaxie, which had been cut off by use of an acetylene torch, a quarter panel, the front seats with seat covers, a doorpost with a sticker showing servicing record, a set of trumpet horns, a steering wheel, and some notes that he had made in connection with his study for an examination together with a "Parts Pup" magazine bearing an address label carrying his name and address (found at the garage), were all portions of the Galaxie and contents that had been stolen from him, and that a license tag found there was issued to him from that car.
To the overruling of his amended motion for new trial the defendant excepts.
1. Under the general grounds, of which special grounds 2 and 3 are but amplifications, it is insisted that since the State's case rests upon circumstantial evidence, there was failure to show any recent possession by the defendant of the Ford Galaxie which he was accused of having stolen; that the showing relative to the top, quarter panel, steering wheel, etc., was at most a showing of (a) mere custody on his part as an employee of the man who leased and owned the place, (b) of parts or accessories as distinguished from the vehicle itself.
(a) It appeared that one Prescott had leased the premises and procured from the City of Atlanta a license for the operation of the garage, but this did not preclude the jury from finding that the defendant had taken over operation of the garage since the lessee was incarcerated in Tennessee, or that he had independently engaged in an operation of his own at the premises. Defendant himself contended that he was independently making repairs at the garage on vehicles for his customers. Indicia of ownership or control in him were present. He was in charge, giving direction to those who helped. He had rented the "U Haul It" trailer on which he and a helper had just loaded the Mustang body for moving to some undisclosed destination. The papers and tag were found about or near a desk where defendant kept invoices and the like made out to him. Among the tools belonging to the defendant and found in the garage were acetylene torches, oxygen tanks, an air compressor, and a "jumper" wire — which the officers testified was of the type usually used by automobile thieves in taking a vehicle to which they have no key.
Moreover, even if Prescott were the owner of the business, "Every person, agent or principal, is responsible for his criminal conduct and cannot plead the authority or commands of a superior, as a justification, unless the act be committed under coercion." Hately v. State, 15 Ga. 346 (3). To the same effect, Thompson v. State, 85 Ga. App. 298 (1) ( 69 S.E.2d 206). The evidence supported the theory that the defendant, though he may have been in conspiracy with Prescott and others, participated in the theft and cutting up of the Galaxie automobile.
(b) It is true that the theft of an automobile is a felony, while the theft of automobile parts or accessories is a misdemeanor ( Sampson v. State, 60 Ga. App. 512 (2) ( 4 S.E.2d 290), but the proof in this case authorized the jury to conclude that the defendant had stolen the vehicle itself and later disassembled it. Howington v. State, 110 Ga. App. 452 ( 138 S.E.2d 677). And see Harris v. State, 62 Ga. 337, where it was held that the presence of blood and swine hair on the defendant's premises, not satisfactorily explained, authorized a conviction of hog stealing.
2. In ground 1 of the amendment error is assigned upon the admission of the evidence relative to the loading of a portion of a Mustang body, identified by the owner as being a portion of a vehicle stolen from him, over objection that the defendant had been indicted and was being tried for the larceny of a Ford Galaxie automobile — a separate and entirely distinct offense and transaction.
This testimony was admitted for the limited purpose of showing knowledge, intent, good or bad faith and state of mind, and the jury was so instructed. It appeared that both vehicles had been recently stolen from the streets of Atlanta, and the portions of them found on the premises where defendant was operating indicated that both had been disassembled and cut to pieces with acetylene torches. In each instance a similar method, scheme and mode of operation appeared to have been used. In these circumstances the evidence was admissible. Harden v. State, 81 Ga. App. 638, 640 ( 59 S.E.2d 563) and cases there cited.
Judgment affirmed. Nichols, P. J., and Pannell, J., concur.