Martin Et Al. v. The State., 168 Ga. App. 623, 309 S.E.2d 899 (1983)

Georgia Court Of Appeals

Status: DECIDED

Docket Number: 66996

Parts: BIRDSONG, Judge.

Linked as:

Summary

Judgment reversed. Shulman, C. J., and McMurray, P. J., concur.

Summary

Judgment reversed. Shulman, C. J., and McMurray, P. J., concur.

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Richard T. Taylor, for appellants.

Theft by Taking (Shoplifting). Evelyn L. Martin and her two daughters, Evelyn P. Martin and Barbara Martin were convicted of obstruction of an officer while attempting to arrest the mother and two daughters. In addition, Mrs. Martin and her daughter Evelyn P. Martin were convicted of shoplifting. Each was sentenced to a misdemeanor punishment with weekend forfeitures of freedom and fines, as well as other accessory punishments, consistent with limited probation. Each appellant was represented by the same counsel and all three have presented identical enumerations of error. Held:

1. In relation to the conviction of the two Evelyns of the shoplifting charge, the state by accusation, charged each with unlawfully taking property of a Piggly Wiggly store, with intent to deprive the owner of the meat products involved by "removing" the meat products from the immediate place of display. No objection or demurrer was made to this accusation as laid and following the court's charge, the jury convicted each of these two appellants of the crime of removing" the meat products from the place of display.

It is clear that the accusation was based on former Code Ann. 26-1802 (b) (Ga. L. 1968, pp. 1249, 1290; 1974, pp. 468, 469; 1975, pp. 876, 877), rather than on the then current shoplifting statute set forth in Code Ann. 26-1802.1 (now OCGA 16-8-14 (a) (1)). A comparison of the then current shoplifting statute with the former version reveals that the first method of committing the offense as set forth in the earlier statute and charged in the accusation, i.e., "removes any such merchandise from the immediate place of display," did not carry over into the then current version of the statute. While there was evidence sufficient to support a finding that mother and daughter individually concealed the merchandise, had that crime been charged, the "removal" of the merchandise as alleged to be the crime in the accusation is, in and of itself, no longer a criminal act. As removal of merchandise is an act a citizen may perform legally, it may not be punished as a crime. Sowards v. State, 137 Ga. App. 423, 425 (224 SE2d 85). See Burnett v. State, 152 Ga. App. 738, 739 (264 SE2d 33). An accusation charging a removal of merchandise from the immediate place of display is not an act of shoplifting cognizable under the criminal laws of this state. Grizzle v. State, 155 Ga. App. 91, 93 (4) (270 SE2d 311).

The state argues that the proper action to have been pursued by the Martins was to demur to the accusation. In absence of such a demurrer, the state argues the Martins have waived any deficiency. We would have no argument with such a position if the error was one of form. However, the fact is that the jury has convicted the Martins of conduct that is not a criminal act in this state. Thus the convictions of the two Evelyns upon such an accusation is wholly unwarranted under the law and is contrary to law. Draper v. State, 230 Ga. 700, 706 (5) (198 SE2d 865). See also Thomas v. State, 249 Ga. 339, 340-341 (290 SE2d 462); Pierce v. Altman, 147 Ga. App. 22 (248 SE2d 34). For this reason also the case must be reversed as to all three defendants.

3. Because this case must be reversed for the reasons set forth in Divisions 1 and 2 of this decision, we need not reach the other enumerations raised by appellants.

Beverly B. Hayes, District Attorney, William T. McBroom, Assistant District Attorney, for appellee.