defendant indicted for committing theft by “wrongfully taking” property, but the trial judge defined the offense of theft by taking as one which could be committed by either of two alternative methods, not simply by the method alleged in the indictment
How later courts described this case
- defendant indicted for committing theft by “wrongfully taking” property, but the trial judge defined the offense of theft by taking as one which could be committed by either of two alternative methods, not simply by the method alleged in the indictment
- distinguishing between statute’s final use of “taken” and “appropriated” just as between theft by taking and by appropriation
Written by the judges who cited it.
The opinion
McMurray, Judge,
dissenting.
This case involves another one of the so-called self-help repossessions in which the repossessing person has been charged with theft. Here the defendant was indicted and tried under separate indictments for motor vehicle theft and theft by taking. At the close of the evidence the trial court granted a motion for directed verdict as to the charge of motor vehicle theft but denied defendant’s motion for directed verdict as to the charge of theft by taking. The indictment charging theft by taking involved the unlawful taking of personal property, that is, property of another of the value of more than $100, allegedly taken "with the intention of depriving said owner of said property.”
The majority here in reversing the judgment of conviction contends there is a fatal variance of proof from the indictment returned by the grand jury contending the *247 defendant has been indicted for the taking of the owner’s property whereas by reason of the charge to the jury the court has allowed the defendant to be convicted of unlawfully appropriating the owner’s property. The basis for this ruling, which is based on a rather lengthy decision, is that the court first directed a verdict for the defendant as to the unlawful taking of the motor vehicle, and thus made a finding that the defendant was not unlawfully in possession of the motor vehicle, and having legal possession of the motor vehicle could only be guilty of unlawfully appropriating the personal property in the vehicle. The majority contend that the indictment is based solely on a charge of unlawfully taking which in and of itself excluded the charge of being in lawful possession thereof and unlawfully appropriating the property; hence, there was a fatal variance between the allegata et probata.
In reaching this decision the majority also have sought to overrule language found in Clark v. State, 138 Ga. App. 266 (4) ( 226 SE2d 89 ), wherein it was held that the statute, Code § 26-1802 (a), does not define unlawful taking, that is, a person must either unlawfully take or unlawfully appropriate in order to convict himself and makes "the manner in which said property is taken,” irrelevant, thus not requiring a definition of the term "unlawfully taking.” In the Clark case at p. 269 it continues as follows: "[T]he gravamen of the offense is the taking of the property of another against the will of such other,” citing Stull v. State, 230 Ga. 99, 100 ( 196 SE2d 7 ), and "regardless of whether the property is taken or appropriated and the manner of the taking or the appropriation” there was no fatal variance between the indictment and the proof. Judge Stolz in that opinion cited Dobbs v. State, 235 Ga. 800 (3) ( 221 SE2d 576 ), and Ingram v. State, 137 Ga. App. 412 (3b) ( 224 SE2d 527 ) which hold our courts should no longer tolerate over-technical applications of the fatal-variance rule.
I call attention here to the indictment in the case of Clark v. State that the defendant was charged with unlawfully taking money, the property of another, with the intention of depriving said owner of said money. I agree fully with Chief Judge Bell and Judges Clark and *248 Stolz therein that under such an indictment if the evidence was sufficient to support the charge the defendant could have been found guilty of either unlawfully taking or unlawfully appropriating the property of another "against the will of such other.”
Under the above circumstances I cannot agree with my learned brothers of the majority. The above language in Clark v. State, supra, is correct and should be followed. I do not agree that under the indictment here the defendant could only be convicted of first unlawfully taking the personal property and thus could not be convicted of unlawfully appropriating the property. I cannot agree that since the court had directed the verdict as to the automobile theft this was a finding that there was no unlawful taking and that the court in charging as to unlawful appropriation was an erroneous charge under the indictment thus creating a fatal variance between the proof and the indictment.
I am in full agreement with the holding in Clark v. State, supra, and I would adhere to same. The court did charge the jury that the defendant did have a right to take lawful possession of the automobile and any contents of the automobile; that he would not be guilty of theft in this case by merely taking the automobile with its contents but if the personal property contained therein was not returned to the rightful owner, that is, "intentionally withheld” and "intentionally deprived [the owner] of the same, you [the jury] would then be authorized to convict him of the charge, bearing in mind that the State would have to prove any such intent.”
I, therefore, disagree with the majority in the opinion as written and in its judgment of reversal, as I would affirm the judgment. I, therefore, respectfully dissent.
I am authorized to state that Chief Judge Bell and Presiding Judge Deen join in this dissent.