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ROBINSON v. STATE
Robinson v. The State, Court of Appeals of Georgia (Nov. 14, 1979)
Factual and Procedural Background
Defendant Robinson was indicted in Whitfield Superior Court for motor vehicle theft, tried before Judge Temples, and convicted. The indictment alleged that defendant "did unlawfully then and there take and carry away a certain motor vehicle to-wit: One 1978 Ford Ranger truck, property of Kenneth English." The evidence showed English had given defendant permission to borrow the truck to see a doctor and asked that it be returned in an hour; several hours later the truck had not been returned, and English reported it stolen. Several days later defendant was arrested in the truck in Milledgeville, far from Whitfield County. Defendant testified English had given unlimited permission to use the truck. Defendant appealed, contending the trial court erred in denying his motion for judgment of acquittal notwithstanding the verdict based on a fatal variance between the allegata and probata and alleging error in the jury charge.
Legal Issues Presented
- Whether the trial court erred by denying defendant's motion for judgment of acquittal based on a claimed fatal variance between the indictment (allegata) and the proof (probata).
- Whether the trial court's jury charge authorizing conviction on either method of theft (taking or unlawful appropriation) created a fatal variance when the indictment charged only an unlawful taking.
Arguments of the Parties
Appellant's Arguments
- Robinson argued the indictment charged an unlawful taking but the evidence also supported unlawful conversion (appropriation) and the jury was permitted to convict on a theory not charged in the indictment, creating a fatal variance warranting acquittal.
Appellee's Arguments
This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Martin v. State, 143 Ga. App. 875 (240 S.E.2d 231) | That motor vehicle theft is subject to Code § 26-1802 which defines all thefts by taking. | Used to ground the discussion that motor vehicle theft falls under the statutory provision defining theft by taking. |
| Walker v. State, 146 Ga. App. 237, 239 (246 S.E.2d 206) | Quotation and explanation that Code § 26-1802 "delineates two separate, and alternative, types of theft under subsection (a) ... [1] unlawfully takes or, [2] being in lawful possession thereof, unlawfully appropriates any property of another..." | Relied upon to show that theft can be committed by two alternative methods and to conclude a fatal variance was possible where the jury could convict on a method (unlawful appropriation) not charged in the indictment. |
| Martin v. State, 123 Ga. 478, 479 (51 S.E. 334) | Cited as authority that depending on the jury's belief the evidence could authorize conviction under either method of theft. | Referenced to support the proposition that the evidence could authorize conviction for either theft by taking or theft by unlawful appropriation. |
| Johnson v. State, 27 Ga. App. 635 (1) (109 S.E. 535) | Cited along with other authorities to support that either method of theft could be applicable depending on the jury's finding of intent. | Referenced as additional authority for the court's statement that the evidence could support conviction under either statutory method. |
Court's Reasoning and Analysis
The court explained that Code § 26-1802 defines two separate and alternative methods of theft: (1) an unlawful original taking with the requisite animus furandi, and (2) unlawful appropriation of property obtained lawfully but thereafter converted with the requisite intent. The evidence in this case could support conviction under either theory depending on whether the jury believed defendant had lawful or unlawful intent when he obtained possession of the truck. The indictment, however, charged only the first method (an unlawful taking). The trial court's charge authorized conviction if the jury found theft by either method. Because the jury could have convicted on the theory of unlawful appropriation—a crime not charged—the court held there was a possibility of a fatal variance between the allegata and probata. Although the appellate court did not agree Robinson was entitled to a directed verdict of acquittal, it found prejudicial error in the charge for permitting conviction on a theory not charged and concluded reversal was required.
Holding and Implications
Judgment reversed.
Direct effect: The trial court's judgment and sentence were reversed because the jury charge authorized conviction on a theory (unlawful appropriation) not contained in the indictment alleging only an unlawful taking. The opinion does not discuss broader legal implications beyond the reversal or establish a new precedent beyond applying cited authorities to the facts.
BIRDSONG, Judge.
Defendant was indicted for motor vehicle theft and convicted. He appeals contending that the trial court erred in denying his motion for judgment of acquittal notwithstanding the verdict of guilty based upon a fatal variance between the allegata and probata. While we do not agree that Robinson was entitled to a motion for a directed verdict of acquittal, we agree that there was prejudicial error in the charge of the trial court which necessitates reversal of the judgment and sentence. The indictment in pertinent part charged that defendant "did unlawfully then and there take and carry away a certain motor vehicle to-wit: One 1978 Ford Ranger truck, property of Kenneth English ..." The state's evidence shows that on the date of the alleged theft, March 28, 1978, defendant asked to borrow the victim English's truck as defendant was ill and wanted to see a doctor. English agreed but directed defendant to return it in an hour. After the lapse of several hours, defendant had not returned the truck. English reported to the police that his truck had been stolen. Several days later defendant was arrested in this truck in Milledgeville, Georgia, which is a great distance from Whitfield County where English gave defendant permission to use his truck. Defendant testified in his own behalf that English had given unlimited permission to use the truck.
Motor vehicle theft is subject to Code § 26-1802 which defines all thefts by taking. Martin v. State, 143 Ga. App. 875 ( 240 S.E.2d 231). This Code section "... delineates two separate, and alternative, types of theft under subsection (a). Under subsection (a), a person `commits theft by taking [1] when he unlawfully takes or, [2] being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of said property, regardless of the manner in which said property is [1] taken or [2] appropriated.' This subsection clearly defines two separate and alternative methods of committing `theft by taking'; (1) where the original taking of the property is unlawful and the taker possesses the requisite animus furandi, or (2) if the taker is in lawful possession of the property, he unlawfully appropriates the owner's property to his own use, and possesses the requisite intent." Walker v. State, 146 Ga. App. 237, 239 ( 246 S.E.2d 206). Depending on whether the jury believed appellant had a lawful or unlawful intent at the time he obtained possession of the motor vehicle, the evidence here would authorize a conviction based on either a theft by taking and carrying away or a theft by unlawfully appropriating property which had been lawfully obtained. See Martin v. State, 123 Ga. 478, 479 ( 51 S.E. 334); Johnson v. State, 27 Ga. App. 635 (1) ( 109 S.E. 535). The court in its charge authorized a finding of guilty if the jury found a theft by either method of accomplishment. The indictment here however charged defendant with the first method of theft by taking, i. e., that the original taking of the truck was unlawful. We are unable to foreclose the possibility of a fatal variance from the indictment under our holding in Walker v. State, supra, because the jury could have convicted appellant of a crime not charged, inasmuch as the charge of the court authorized a conviction of theft by unlawful conversion (a crime not charged but supported by the evidence). It was error for the trial court in its charge to authorize a conviction of an unlawful taking based upon evidence which also showed unlawful conversion. Walker v. State, supra.
Judgment reversed. Quillian, P. J., and Smith, J., concur.
BIRDSONG, Judge.
SUBMITTED JULY 9, 1979 — DECIDED NOVEMBER 14, 1979.Alert