Where on the trial of one charged with the offense of receiving stolen goods, the defendant admits buying goods which are shown by undisputed evidence to have been stolen, the burden is still upon the State to prove beyond a reasonable doubt that the transaction occurred with guilty knowledge on the part of the defendant; for scienter is an essential element of the crime of receiving stolen goods and must be proved to warrant conviction.
The defendant under an indictment charging him with the offense of receiving stolen goods was tried and convicted in the Superior Court of Gwinnett County. The evidence adduced on the trial disclosed that on the night of July 17, 1961, or early morning of July 18, 1961, Thomas Wesley West, age 24, and two accomplices (whose ages where not disclosed) burglarized the garage of Elmer Jones and stole a quantity of tools and other goods belonging to the owner. Subsequently, a quantity of the tools stolen were taken by West and his accomplices to Bennie Allen's junk yard where the tools were purchased by the defendant, an employee of Bennie Allen, for $8.00. This transaction occurred in the daytime and there had been no previous transactions between these parties and the defendant. The defendant when later confronted by the investigating officers freely admitted purchasing the tools and voluntarily produced them when informed that the tools had been stolen. One of the officers testified that the defendant was "very cooperative" in the investigation. There was no evidence introduced as to the value of the tools or as to their age and condition, although Elmer Jones, the owner, testified that it would cost approximately $225 to replace the tools with new ones. The indictment alleged and the evidence showed that Thomas Wesley West, one of the, principal thieves, had been tried and convicted for the offense of burglary. The defendant in his statement to the jury admitted purchasing a quantity of tools from West and his associates but denied that he had any knowledge at the time of the transaction that the tools had been stolen.
The exception is to the order of the trial court denying the defendant's amended motion for new trial.
1. Where the defendant admits buying and receiving goods which are shown by undisputed evidence to have been stolen, the burden is still upon the State to prove beyond a reasonable doubt that the transaction occurred with guilty knowledge on the part of the defendant; for scienter is an essential element of the crime of receiving stolen goods and must be proved to warrant conviction. Sanford v. State, 4 Ga. App. 449 (61 SE 741)
; Arkwright v. State, 57 Ga. App. 221 (1) (194 SE 876)
; Chambers v. State, 94 Ga. App. 531 (95 SE2d 326)
. "Such knowledge need not necessarily be proved by direct testimony, but may be shown by circumstances, such as the defendant's conduct and behavior, the character of person from whom the goods were received, the kind of goods, and the hour when received." Cobb v. State, 76 Ga. 664 (2)
. But where as in the instant case, the evidence relied on to show knowledge on the part of the defendant that the goods were stolen, is entirely circumstantial, in order for the conviction to be sustained, the evidence must be sufficient toe exclude every other reasonable hypothesis than that of his guilt. Casper v. State, 22 Ga. App. 126
, 130 (95 SE 534
); Code 38-109.
Thus measured, it is our opinion that the evidence adduced on the trial of this case, which did not show any knowledge on the part of the defendant that the tools had been stolen at the time he received them, nor any circumstances from which the jury could do more than surmise the existence of such guilty knowledge on his part, was insufficient to authorize the verdict rendered. The only circumstance from which the jury might impute guilty knowledge to the defendant was the possible variance between the actual value of the tools and the amount the defendant paid for them. The State, however, failed to prove the value of the tools based on their condition at the time of the transaction, there being evidence only as to their replacement value; leaving the reasonable deduction that the tools at the time of the transaction were only worth approximately the price paid by the defendant. This circumstance, relied upon by the State to prove knowledge, is as consistent with the defendant's innocence as with his guilt. The trial court therefore erred in overruling the defendant's motion for a net trial on the general grounds.
2. Special ground 4 contends that the trial court erred in failing to give in charge to the jury the provisions of Code Ann. 26-2620, defining the offense of receiving stolen goods. The record in this case discloses that the court charged all of the provisions of this Code section except that added by the 1961 amendment (Ga. L. 1961, p. 118) which provides as follows: "Such buyer or receiver may be prosecuted without the principal thief having been convicted, if the principal thief is under 17 years of age or is insane." Since this provision of law was clearly inapplicable to the facts in the instant case, the trial court did not err in omitting it in its charge on Code Ann. 26-2620; and this ground of the amended motion is without merit.