O.C.G.A. § 16-8-1 (2019)

Statute text

As used in this article, the term:

(1) "Deprive" means, without justification:

(A) To withhold property of another permanently or temporarily; or

(B) To dispose of the property so as to make it unlikely that the owner will recover it.

(2) "Financial institution" means a bank, insurance company, credit union, building and loan association, investment trust, or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.

(3) "Property of another" includes property in which any person other than the accused has an interest but does not include property belonging to the spouse of an accused or to them jointly.

History

(Code 1933, § 26-1801, enacted by Ga. L. 1968, p. 1249, § 1.)

Annotations

JUDICIAL DECISIONS

Inference or presumption of fact based on unexplained possession of stolen goods. - When a theft, whether by simple larceny, burglary, or robbery is proven, recent unexplained possession of the stolen goods by the defendant creates an inference or presumption of fact sufficient to convict. Selph v. State, 142 Ga. App. 26, 234 S.E.2d 831 (1977); Wells v. State, 151 Ga. App. 416, 260 S.E.2d 374 (1979), overruled on other grounds, Copeland v. State, 160 Ga. App. 786, 287 S.E.2d 120 (1982).

Inference exists without direct proof or other circumstantial evidence that the defendant committed the theft. Selph v. State, 142 Ga. App. 26, 234 S.E.2d 831 (1977).

Effect of proving criminal intent at time of taking. - Once criminal intent at the time of taking was proved, it became irrelevant whether the deprivation was permanent or temporary. Martin v. State, 143 Ga. App. 875, 240 S.E.2d 231 (1977).

Defendant's intent to take motor vehicles for defendant's own temporary use without the owner's authorization evinced an intent to commit theft. Sorrells v. State, 267 Ga. 236, 476 S.E.2d 571 (1996).

Defendant's use of an automobile after the owner's death was evidence of defendant's intent to commit theft. Mullinax v. State, 273 Ga. 756, 545 S.E.2d 891 (2001).

Failure to allege "property of another". - Indictment for robbery by force, O.C.G.A. § 16-8-40(a)(1), was defective because the indictment failed to allege the essential element that the defendant took the "property of another," defined in O.C.G.A. § 16-8-1(3), and the defendant could admit all the allegations in the indictment and not be guilty of a crime. Defendant's general demurrer should have been granted. Cooks v. State, 325 Ga. App. 426, 750 S.E.2d 765 (2013).

Spouse's property not "property of another." - Because the object of theft must be "property of another," a person cannot commit theft of property of his/her spouse. Calloway v. State, 176 Ga. App. 674, 337 S.E.2d 397 (1985).

When the defendant was charged with aggravated assault and family-violence battery arising from a chokehold the defendant applied to the defendant's pregnant wife, the defendant's motion for immunity was improperly granted because the defendant and the victim were married at the time of the altercation, they lived in the house where the incident occurred together, the victim routinely took care of the parties' small dog, and the victim was entitled to handle the dog, including putting the dog out of the house; and the defendant reacted to the victim's struggling against the chokehold by tightening the defendant's grip, which was not justified as the victim was not committing a forcible felony against the dog. State v. Morgan, 346 Ga. App. 702, 814 S.E.2d 823 (2018).

Mutually exclusive verdicts. - Trial court erred in vacating defendant's theft by taking verdict and in sentencing defendant on the theft by receiving stolen property verdict as the verdict was illegal; the crimes of theft by taking and theft by receiving stolen property were mutually exclusive, and the addition of the word "retain" in O.C.G.A. § 16-8-7(a) does not change the fact that the heart of the crime of receiving stolen property was the guilty possession by someone who was not the thief. Ingram v. State, 268 Ga. App. 149, 601 S.E.2d 736 (2004).

Cited in Johnson v. State, 130 Ga. App. 134, 202 S.E.2d 525 (1973); Dunphy v. State, 131 Ga. App. 615, 206 S.E.2d 524 (1974); Franklin Life Ins. Co. v. Hill, 136 Ga. App. 128, 220 S.E.2d 707 (1975); Clark v. State, 138 Ga. App. 266, 226 S.E.2d 89 (1976); Causey v. State, 139 Ga. App. 499, 229 S.E.2d 1 (1976); First Nat'l Bank & Trust Co. v. State, 141 Ga. App. 471, 233 S.E.2d 861 (1977); Smith v. State, 172 Ga. App. 356, 323 S.E.2d 257 (1984); Parrott v. State, 190 Ga. App. 784, 380 S.E.2d 343 (1989); Sledge v. State, 245 Ga. App. 488, 537 S.E.2d 753 (2000); Knight v. State, 246 Ga. App. 299, 540 S.E.2d 254 (2000); Howard v. State, 263 Ga. App. 593, 588 S.E.2d 793 (2003); Lewis v. State, 287 Ga. App. 379, 651 S.E.2d 494 (2007); Brandeburg v. State, 292 Ga. App. 191, 663 S.E.2d 844 (2008), cert. denied, No. S08C1796, 2008 Ga. LEXIS 921 (Ga. 2008); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009); Tauch v. State, 305 Ga. App. 643, 700 S.E.2d 645 (2010); The Plantation at Bay Creek Homeowners Association, Inc. v. Glasier, 349 Ga. App. 203, 825 S.E.2d 542 (2019).

RESEARCH REFERENCES

ALR. - Should ownership of property be laid in the husband or wife in an indictment for larceny, 2 A.L.R. 352.

Larceny by general owner of property in which another has a special interest or right of possession, 58 A.L.R. 330.

Necessity of alleging and proving in prosecution for larceny, embezzlement, or receiving stolen property that "owner" of property, if not a natural person, was incorporated or otherwise a legal entity capable of owning property, 88 A.L.R. 485.

Dogs as subject of larceny, 92 A.L.R. 2l2.

Larceny of real property or things savoring of real property, 131 A.L.R. 146.

Charge of larceny or receiving stolen goods predicated upon taking or appropriation of waste paper or other articles deposited in street with intention to donate to patriotic or other cause, 156 A.L.R. 631.

Person who steals property in one state or country and brings it into another as subject to prosecution for larceny in latter, 156 A.L.R. 862.

Criminal liability for theft of, interference with, or unauthorized use of, computer programs, files, or systems, 51 A.L.R.4th 971.

Joyriding or similar charge as lesser-included offense of larceny or similar charge, 78 A.L.R.5th 567.

Theft of misaddressed or misdelivered mail as violation of 18 USCS § 1708, covering theft from mail post office, or mail depository, 113 A.L.R. Fed. 411.

What is "property of another" within statute proscribing larceny, theft, or embezzlement of property of another, 57 A.L.R. 6th 445.