Gaspin v. State , 76 Ga. App. 375 ( 1947 )

1. The evidence authorized the verdict.

2. In an indictment for buying and receiving stolen goods, the fact that it must be alleged and proved that the principal thief, whether taken or not, whether known or not, is guilty, is but a regulation affecting the trial, and such allegations do not constitute allegations of essential elements in the crime charged.

3. Where an indictment is drawn under the Code, § 26-2620, charging the defendant with knowingly buying and receiving stolen goods, it is not necessary to prove that he knowingly received the stolen goods from the principal thief, but if it is proved that he received them, knowing them to be stolen, from any person whatsoever, he would be guilty of violating § 26-2620.

DECIDED OCTOBER 31, 1947. ADHERED TO ON REHEARING DECEMBER 20, 1947. Samuel Gaspin was indicted for receiving stolen goods. The jury returned a verdict of guilty, and he was sentenced as for a misdemeanor. The defendant filed a motion for new trial, which was based on the general and seven special grounds. This motion was overruled, and he excepted.

It is alleged in the indictment that the defendants did then and there unlawfully buy and receive from Alfonso J. Erwin Jr. and Wiley Watkins the following described personal property, to wit: cigarettes of the value of $6750, the same being the property of J. S. Pinkussohn Cigar Company, which said personal property had been stolen, and the said Max Rosenberg and Samuel Gaspin then and there knowing the said personal property to have been stolen, the said Alfonso J. Erwin Jr. and Wiley Watkins having theretofore, on the 14th day of February, 1946, broken and entered the place of business of J. S. Pinkussohn Cigar Company, wherein were stored and contained valuable goods, and the said defendants having heretofore been arrested, indicted, tried and convicted as principals in said burglary, said conviction having been had on the 22nd day of May, 1946.

The defendant contends that his conviction was illegal because: (1) the evidence shows that the defendant did not receive the goods from the original thieves, but received them from Rosenberg, and knew nothing whatsoever about where Rosenberg acquired the goods; (2) there is no evidence of a conspiracy or agreement between the defendant and Rosenberg whereby the latter should purchase the goods from the thieves and then turn over a portion thereof to the defendant; (3) under the law of Georgia, the receiver of stolen goods is designated as an accessory after the fact, and can not be legally convicted unless it is shown that he received the goods from the principal thief or conspired with one who did receive the goods from the principal thief.

There was evidence to the effect that the principal thieves, Erwin and Watkins, pleaded guilty on May 22, 1946, to the offense of stealing the cigarettes in question on February 14, 1946, of the value of $6750; that Max Rosenberg and Samuel Gaspin, the defendants here, were indicted jointly for buying and receiving from such principal thieves these cigarettes of the value of $6750; that Rosenberg pleaded guilty to the indictment; that on the same day or the next day after the theft Gaspin sold a large quantity of cigarettes to one Cathey for $1.35 a carton when the open market was $1.53 a carton; that these cigarettes were concealed and locked in the bottom of a cabinet in the defendant's kitchen, which was about thirty feet deep, and were not in the front part of his store; that when city detective Ryan investigated the theft of the cigarettes, he asked Gaspin about the cigarettes which were taken from J. S. Pinkussohn Company; that at first the defendant denied that he had sold such cigarettes, but later told the detective that he had received three cases from Rosenberg at $1.25 a carton, and had sold them to Cathey for $1.45 a carton; and that at the time of the investigation of Gaspin, the detective did not know "who had stolen the cigarettes or who Mr. Rosenberg had bought them from; he [Gaspin] told us that Mr. Rosenberg said that he was overstocked and would sell him the cigarettes at a premium; it was from the information given us by Mr. Gaspin that we arrested Mr. Rosenberg, and then we learned who had stolen them, and they were arrested. When we went to Rosenberg we later related to him what Gaspin had said."

The defendant in his statement to the jury said: "Gentlemen of the jury, I am not guilty of the charges against me in this case. Mr. Rosenberg, who runs a grocery store, and a brother-in-law to a cousin of mine, told me he was overstocked with some cigarettes; he said he had Old Golds and Philip Morris not moving fast and he was selling them at a reduced price. After I bought them Mr. Cathey came to my place and I offered to sell them to Mr. Cathey; I knew he was a partner with Mr. Henderson; I sold him three cases; after this transaction Mr. Henderson and Detectives Ryan and Martin came in, and I told them what I knew, that I bought the cigarettes from Mr. Rosenberg, that Mr. Rosenberg told me he was overstocked, and I had no reason to believe they were stolen. I was born in Savannah and was away for a few years, and I came back here to stay. I never have been charged with any offense here or anywhere else." 1. The concealment of the cigarettes, the buying of them below the open-market price, the denial of the fact that he had bought any cigarettes from Rosenberg, and his subsequent admission that he had bought the cigarettes from Rosenberg and had sold three cases to Cathey for $1.45 a carton, which was nearer the open-market price of $1.53 than $1.35, Cathey testified was the price he bought them for, and the fact that Rosenberg was a brother-in-law to a cousin of the defendant, together with the other circumstances in the case as disclosed by the evidence, authorized the jury to accept the contentions of the State instead of those of the defendant, and to find that the defendants, Rosenberg and Gaspin, associated themselves in the unlawful enterprise of buying and selling the stolen cigarettes, knowing them to be stolen; and that, even if the buying of the stolen goods was the act of Rosenberg, it was done in pursuance and furtherance of a conspiracy to buy and sell the cigarettes and, in legal contemplation, was the act of both, even though Gaspin may not have been actually present. Cobb v.State, 76 Ga. 664; Adams v. State, 51 Ga. App. 30 (179 S.E. 417); Nelson v. State, 51 Ga. App. 207 (180 S.E. 16).

2. The Code, § 26-2620, provides: "If any person shall buy or receive any goods, chattels, money, or other effects that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be an accessory after the fact, and shall receive the same punishment as would be inflicted on the person convicted of having stolen or feloniously taken the property."

Under the statute of this State, the offense of accessory after the fact is a separate crime from that of the principal.Chambers v. State, 194 Ga. 773, 782 (22 S.E.2d 487). The offense of receiving stolen goods here charged is a separate offense.

"The offense of receiving or buying stolen goods, knowing them to have been stolen, is a separate offense from the theft of the goods by the principal thief." Sampson v. State, 60 Ga. App. 512 (1) (4 S.E.2d 290).

"The actual thief, relatively to the receiver of stolen goods, is an independent criminal, and although he may commit the larceny by which he possess himself of stolen goods, he does not and can not participate with the receiver of such goods in the special offense committed by the latter in receiving such goods knowing them to be stolen." Springer v. State, 102 Ga. 447 (30 S.E. 971).

"As relates to crimes, ``substantive law' is that which declares what acts are crimes and prescribes punishment therefor. As relates to crimes, ``procedural law' is that which provides or regulates steps by which one who violates criminal statute is punished." State v. Rodosta, 173 La. 623 (138 So. 124).

In Ford v. State, 162 Ga. 422 (134 S.E. 95), it is said: "An indictment under the Penal Code, § 168 [ § 26-2620], against one for receiving stolen goods, knowing them to be stolen, must allege that the principal thief has been indicted and convicted. The conviction of the principal is not an element in the crime defined in the Penal Code, § 168 [26-2620], but is a regulation which affects the time when or the manner in which a person indicted under said section can be tried. The gist of the offense created by said section is buying or receiving goods with the felonious knowledge that they were stolen. Before a conviction can be had for the offense created under said section, it must be shown that the principal, whether taken or not, whether known or not, is guilty."

This ruling of the Supreme Court in the Ford case, supra, it seems to us, states that the buying or receiving of stolen goods knowing the same to be stolen is a separate offense from the theft of the goods by the principal thief, and that the gist of the offense created by the section is buying or receiving stolen goods knowing that they were stolen. Hence, the statute was denouncing as an offense, not the knowingly receiving of stolen goods from the thief himself, or from any other particular person, but the buying and receiving of such goods knowing them to be stolen from any person whatsoever. The fact that it must be alleged and proved that the principal thief, whether taken or not, whether known or not, is guilty, is but a regulation affecting the trial, and such allegations do not constitute allegations of essential elements in the crime charged.

It might be noted that in this case the place where the alleged crime was committed is not a part of the crime, but it is a regulation of the trial that such place must be alleged and proved. Thus, the venue is one of those things also that it is necessary to prove in order to convict, notwithstanding it is not an essential element of the crime.

In the instant case, the theft of the goods is one crime. The knowingly receiving or buying the stolen goods is a separate crime. The requirement that the principal shall be indicted and convicted of the crime is a procedural regulation of the trial, and while it is necessary to allege in the indictment and to prove that the principal thief has been convicted, or was unknown, it is not an allegation of the essential elements of the crime of knowingly receiving or buying stolen goods, and it is not necessary to allege that the accused knowingly bought the stolen goods from the principal thief.

While it is not necessary to allege in the indictment that the accused knowingly received the stolen goods from the thief, the State in this case did so allege, and the accused contends that the evidence shows that the accused did not receive the goods from the principal thief, or thieves, and thus there was a fatal variance between the allegata and probata.

"``Conspiracy or common intent may be established by proof of acts and conduct, as well as of previous express agreement.'"Adams v. State, supra.

Having heretofore stated that the evidence authorized a finding that there was a conspiracy between the accused Gaspin and Rosenberg to associate themselves in the unlawful enterprise of knowingly buying and selling the stolen goods in question, and that the act of Rosenberg, who knowingly bought them from the thief or thieves, in legal contemplation was the act of both, and hence to find that in contemplation of law Gaspin knowingly bought the stolen goods from the thief, or thieves — we do not think that there was a fatal variance between the allegata and probata, as contended by the accused.

The evidence authorized the verdict, and the judge did not err in overruling the motion for new trial.

Judgment affirmed. Gardner and Townsend, JJ., concur.