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Lawskills.com Georgia Caselaw
SOSBEE v. THE STATE.
59801.
BIRDSONG, Judge.
Revocation of probation. Clarke Superior Court. Before Judge Barrow.
Included offenses. Appellant Sosbee was brought before the trial court on a petition for probation revocation which alleged that he "committed the offense of theft by taking on July 26, 1979 in Clarke County, Georgia." The trial court, after full hearing, did revoke appellant's probation, but upon the basis that appellant had committed the "lesser included offense of theft by disposing." The trial court was apparently unable to find that Sosbee had participated in the theft of the shotgun in question but did find that he disposed of it. At trial appellant excepted to the finding of a different or lesser included offense than what was charged and, on appeal, urges that "theft by disposing" is not a lesser included offense of theft by taking, and that it was error to revoke appellant's revocation on proof of an offense not alleged in the petition. Held:
Appellant and two other persons were in the home of a Mr. Joe Brown for a period of time. After the visitors to Brown's house left, Brown's son noticed a Browning automatic shotgun missing.
Appellant and another person sold the Browning automatic shotgun to one Whitehead for $40.00. After arrest and being advised of his Miranda rights, appellant made a statement to the police that he did not know it was stolen, and the only thing he got out of it was $5.00 to buy a bottle of liquor.
We presume that by "theft by disposing" the trial court intended to find "theft by receiving" (Code Ann. 26-1806). Theft by receiving is not a lesser included offense of theft by taking. They are two completely different crimes, having different elements, and are, in fact, so mutually exclusive that the thief and the receiver cannot even be accomplices. Plummer v. State, 126 Ga. App. 482, 483 (191 SE2d 333). Nothing that is said in Callahan v. State, 148 Ga. 555, 556-557 (251 SE2d 790) directly contradicts this principle, and if inferentially it did, we would be inclined to disapprove it. The offense of theft by receiving is intended. to catch the person who buys or receives stolen goods, as distinct from the principal thief. Evidence shows either that a defendant stole goods or that he received stolen goods with scienter of the theft: See Reidling v. State, 127 Ga. App. 93 (192 SE2d 531). He does not, under any circumstances we can think of, commit both crimes at once. If he is in recent unexplained possession or disposition, that is sufficient to raise an inference of theft, and so it is not necessary or advised to find that the same possession constitutes theft by receiving. But if it is clear that he acquired possession or control of the goods from another when he knew, or should have known, they were stolen, then he is guilty of theft by receiving and not of theft by taking. Code 26-1802. There is no need or basis to mix the two offenses, and it is error to include them in each other. Judgment in this case, being based on an offense not charged in the petition for revocation, is hereby reversed.
Harry N. Gordon, District Attorney, for appellee.
Vicki C. Affleck, Jack H. Affleck, Jr., Curtis W. Miller, for appellant.
ARGUED APRIL 8, 1980 -- DECIDED JULY 7, 1980.
Friday May 22 01:19 EDT


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