O.C.G.A. § 16-8-5 (2019)

Annotations

Cross references. - Theft of telecommunication services, § 46-5-2 et seq. Law reviews. - For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For article, ‘‘Cable

Theft: The Problem, The Need for Useful State Legislation and a Proposed Solution For Georgia,’’ see 35 Emory L.J. 643 (1986).

JUDICIAL DECISIONS Essential ingredient of offense of theft of services is intention to avoid payment. Roberson v. State, 145 Ga. App. 687, 244 S.E.2d 629 (1978); Johnson v. State, 159 Ga. App. 497, 283 S.E.2d 711 (1981); Williamson v. State, 191 Ga. App. 388, 381 S.E.2d 766 (1989). Fraudulently obtaining apartment. - There was direct evidence that defendant obtained services, lodging, by deception, where defendant obtained an apartment by using the name of another and stolen identification. Nichols v. State, 210 Ga. App. 134, 435 S.E.2d 502 (1993). Use of vacant apartment and use of electricity. - Surreptitious and unauthorized entrance and use of a vacant apartment is one of the forms of obtaining ‘‘accommodations’’ clearly encompassed within the meaning of O.C.G.A. § 16-8-5, and the surreptitious and unauthorized

use of electricity or electrical energy is one of the forms of obtaining ‘‘services’’ within the meaning of that Code section. Phillips v. State, 204 Ga. App. 698, 420 S.E.2d 316 (1992). State failed to show the intent necessary to warrant a conviction when the record contained the defendant’s unimpeached testimony that the defendant intended to pay a babysitter for keeping the defendant’s child and that the only reason the defendant did not pay was because the defendant had not received anticipated wages. Williamson v. State, 191 Ga. App. 388, 381 S.E.2d 766 (1989). Enjoining criminal proceeding by bankruptcy court. - Bankruptcy court should refuse to enjoin a state criminal proceeding for theft of services unless that proceeding is brought in bad faith, or the proceeding is brought solely for the pur-

pose of collecting a debt. Tenpins Bowling, Ltd. v. Alderman, 32 Bankr. 474 (Bankr. M.D. Ga. 1983). Defendant’s giving false information in an application for a county-appointed attorney about the true state of defendant’s finances and thereafter obtaining and accepting the services of appointed counsel was sufficient to authorize a conviction under O.C.G.A. § 16-8-5. Carter v. State, 237 Ga. App. 703, 516 S.E.2d 556 (1999). Evidence sufficient for conviction. - See Shores v. State, 240 Ga. App. 189, 522 S.E.2d 515 (1999). Sufficient evidence supported the defendant’s theft of services conviction as the evidence permitted the jury to infer that: (1) by paying a store clerk $50 to access another credit application in order to provide the defendant with a cell phone, the defendant encouraged, hired, or procured the store clerk to engage in deception; and (2) the defendant did not intend to pay for the communications services received as a result. Jones v. State, 285 Ga. App. 822, 648 S.E.2d 133 (2007). Evidence was sufficient to support the defendant’s conviction for theft of services because the defendant engaged in the surreptitious and unauthorized use of water services since the defendant had actual knowledge that water was being provided to the residence as a result of illicit tampering with the water meter and not because the defendant had applied for water service from the county water department, and the evidence demonstrated that the department notified the defendant that it would not turn the water on,

yet the defendant continued to stay in the residence, which was consistent with the defendant’s use of the stolen water without the intent to pay; for purposes of O.C.G.A. § 16-8-5, there was no reason to distinguish between the theft of water services and the theft of electrical services, and the jury was entitled to conclude that it was not a reasonable hypothesis that the defendant continued to stay in the home while refraining from employing the water for its common and necessary purposes, but, rather, any rational trier of fact could conclude that the defendant engaged in the surreptitious and unauthorized use of water services. Jackson v. State, 301 Ga. App. 406, 687 S.E.2d 666 (2009). Evidence not sufficient. - Taxpayers’ complaint for a refund was dismissed, as the taxpayers were not entitled to a theft loss deduction under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock after the taxpayer husband exercised his stock options because they did not show that they were victims of either a theft by taking, theft by deception, theft by conversion, or theft of services under O.C.G.A. § 16-8-2, O.C.G.A. § 16-8-3, O.C.G.A. § 16-8-4, or O.C.G.A. § 16-8-5. The taxpayers were only entitled to capital loss deductions under 26 U.S.C. § 2511. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011). Cited in Adams v. State, 145 Ga. App. 124, 243 S.E.2d 330 (1978); Johnson v. State, 170 Ga. App. 71, 316 S.E.2d 160 (1984); Cisco v. State, 285 Ga. 656, 680 S.E.2d 831 (2009).

RESEARCH REFERENCES Am. Jur. 2d. - 32 Am. Jur. 2d, False Pretenses, §§ 42, 43. C.J.S. - 43A C.J.S., Inns, Hotels, and Eating Places, § 18.

ALR. - What constitutes tax-deductible theft loss under 26 USCS § 165, 98 A.L.R. Fed. 229.