O.C.G.A. § 16-8-10 (2019)

Annotations

JUDICIAL DECISIONS Claim of right. - When the defendant, charged with theft by receiving stolen goods, did not deny the purchase, but contended the defendant purchased while believing the defendant had a right to purchase, failure to charge the substance of former Code 1933, § 26-1810 (see now O.C.G.A. § 16-8-10) was reversible error. Foskey v. State, 125 Ga. App. 672, 188 S.E.2d 825 (1972). When the defense of claim of right is the sole defense available to a charge of theft, but the defendant fails to request a jury charge, failure to make a charge on this defense constitutes reversible error. McRoy v. State, 131 Ga. App. 307, 205 S.E.2d 445 (1974). When defendants omitted to request jury instructions on a claim of right defense, the omission was not harmful or erroneous since the entire gist of the state’s case was precisely that the defendants converted funds without any claim of right. Collins v. State, 170 Ga. App. 753, 318 S.E.2d 492, aff ’d, 253 Ga. 367, 322 S.E.2d 61 (1984). Trial court did not err in failing to charge the jury that an affirmative defense to a prosecution for theft by a public officer arose if the defendant, a sheriff, acted under an honest claim of right to the property or service involved pursuant to O.C.G.A. § 16-8-10(2) because the defendant could not have had an honest claim of right to the county’s property. Dorsey v. State, 279 Ga. 534, 615 S.E.2d 512 (2005). Defendant was properly convicted of felony theft by taking in violation of O.C.G.A. § 16-8-2 because there was evidence that the defendant intended not to

transmit, to a law firm, payments the defendant received for indigent defense work; the defendant’s failure to deny the debt and promises to pay, coupled with evidence of billing, timekeeping, and collection practices, provided evidence from which a jury could infer that the defendant was not acting under a claim of right pursuant to O.C.G.A. § 16-8-10(2) and that the defendant had the intent required to commit theft by taking. Clarke v. State, 317 Ga. App. 471, 731 S.E.2d 100 (2012). Claim of right is a defense to the crime of theft, not armed robbery. Crowder v. State, 241 Ga. App. 818, 527 S.E.2d 901 (2000). Trial court did not err by failing to charge the jury on the defendant’s sole defense of ‘‘claim of right’’ because defendant was not charged under O.C.G.A. §§ 16-8-2 through 16-8-7, but was charged with the offense of robbery ‘‘by use of sudden snatching.’’ Westmoreland v. State, 245 Ga. App. 482, 538 S.E.2d 119 (2000). Defense unavailable for robbery by intimidation. - Because the affirmative defense of ‘‘claim of right’’ under O.C.G.A. § 16-8-10(2) was not, as a matter of law, available to a defendant in a prosecution for robbery by intimidation under O.C.G.A. § 16-8-40(a)(2), the trial court did not err in refusing to charge the jury on that principle. Richards v. State, 276 Ga. App. 384, 623 S.E.2d 222 (2005). Repossession of goods as claim of right. - Defendant’s conviction for theft by taking was reversed, where the trial court’s findings indicated that defendant’s

intent was to repossess a motorcycle under an honest claim of right after purchasers had defaulted on their payments. Edens v. State, 197 Ga. App. 146, 397 S.E.2d 612 (1990). Written request required for charge on political motivation. - When the defendants raised defense of political motivation in addition to defense of ‘‘claim of right’’ the defendants were required to submit a timely written request for such a defense of ‘‘claim of right’’ if the defendants wished to have the defense submitted to the jury. Collins v. State, 170 Ga. App. 753, 318 S.E.2d 492, aff ’d, 253 Ga. 367, 322 S.E.2d 61 (1984). Denial not affirmative defense. - It was not error to fail to charge concerning former Code 1933, § 26-1810 (see now O.C.G.A. § 16-8-10) as an affirmative defense to a theft prosecution when a defendant’s testimony that the defendant found the property nearby and was attempting to discover its rightful owner did not set forth any claim of right of the property, but was merely a denial that the defendant had any intent to deprive the owner of the property. Mathis v. State, 147 Ga. App. 148, 248 S.E.2d 212 (1978). Trial court properly did not instruct the jury, sua sponte under O.C.G.A. § 5-5-24(c), on a claim of right defense

under O.C.G.A. § 16-8-10 to theft by deception charges under O.C.G.A. § 16-8-3 as a sole defense as the defendant did not object to the instructions given, and a claim of right defense was not warranted as the sole defense as the defendant testified about the reasons the defendant was prevented from completing the jobs, and that the defendant had composed a list with the defendant’s pastor of how much work was done on each job, and how much the defendant owed the people. Stratacos v. State, 312 Ga. App. 783, 720 S.E.2d 256 (2011). Cited in Brindle v. State, 134 Ga. App. 257, 214 S.E.2d 182 (1975); Breland v. State, 135 Ga. App. 478, 218 S.E.2d 153 (1975); Cox v. State, 137 Ga. App. 794, 224 S.E.2d 845 (1976); Clontz v. State, 140 Ga. App. 440, 231 S.E.2d 454 (1976); Williams v. State, 142 Ga. App. 764, 236 S.E.2d 893 (1977); Bremer v. State, 148 Ga. App. 461, 251 S.E.2d 355 (1978); Conner v. State, 160 Ga. App. 202, 286 S.E.2d 441 (1981); White v. State, 163 Ga. App. 518, 295 S.E.2d 333 (1982); Grant v. State, 182 Ga. App. 669, 356 S.E.2d 730 (1987); Cincinnati Ins. Co. v. Tire Master of Thomaston, Inc., 183 Ga. App. 64, 357 S.E.2d 812 (1987); Williams v. State, 187 Ga. App. 859, 371 S.E.2d 673 (1988); Wideman v. State, 222 Ga. App. 733, 476 S.E.2d 49 (1996).

RESEARCH REFERENCES Am. Jur. 2d. - 26 Am. Jur. 2d, Embezzlement, § 47. 50 Am. Jur. 2d, Larceny, § 63. C.J.S. - 76 C.J.S., Receiving or Transferring Stolen Goods, §§ 11, 12, 17. ALR. - Larceny or embezzlement by appropriating money or proceeds of paper mistakenly delivered in excess of the amount due or intended, 14 A.L.R. 894. Retaking of money lost at gambling as robbery or larceny, 77 A.L.R.3d 1363.

Embezzlement, larceny, false pretenses, or allied criminal fraud by a partner, 82 A.L.R.3d 822. Robbery, attempted robbery, or assault to commit robbery, as affected by intent to collect or secure debt or claim, 88 A.L.R.3d 1309. What is ‘‘property of another’’ within statute proscribing larceny, theft, or embezzlement of property of another, 57 A.L.R. 6th 445.