Steele v. State

Court of Appeals of Georgia

Steele v. State

267 S.E.2d 500, 154 Ga. App. 59, 1980 Ga. App. LEXIS 2041

CourtCourt of Appeals of Georgia

DecidedMarch 19, 1980

Docket58929

StatusPublished

Cited by1 cases

This text of 267 S.E.2d 500 (Steele v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Steele v. State, 267 S.E.2d 500, 154 Ga. App. 59, 1980 Ga. App. LEXIS 2041 (Ga. Ct. App. 1980).

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Opinions

Smith, Judge.

Appellant was indicted for the offense of theft by conversion. The trial court, sitting without a jury, found appellant guilty of the offense of theft by conversion of leased personal property. We reverse.

The indictment alleges that appellant "having lawfully obtained certain radio telephone equipment of the value of more [60]*60than $200.00, property of Advanced Tel Com, Inc. under a legal obligation to return said property upon termination of his contract for mobile telephone services with said Advanced Tel Com, Inc. did knowingly convert the property to his own use in violation of said legal obligation by refusing to return same.” We note that the indictment does not allege that any personal property has been "delivered under the terms of a lease or rental agreement.” See Code § 26-1814. The indictment refers only to a "contract for mobile telephone services.” However, we need not determine the effect of such language on the instant prosecution. The indictment cannot support appellant’s conviction because it fails to allege that the owner of the radio telephone equipment has been damaged by the conversion.

Submitted November 20, 1979 Decided March 19, 1980. W. McMillan Walker, for appellant. Phillip R. West, District Attorney, Terry F. Holland, Assistant District Attorney, for appellee.

In our view, "damage” to the owner or lessor of personal property is an essential element of the offense of theft by conversion of leased personal property. We base this view not only on the language of Code § 26-1814, but also on the fact that Code § 26-1808, which sets forth the offense of theft by conversion, requires no allegation or proof of damage.

The indictment in this case does not allege that the owner of the radio telephone equipment was damaged by the conversion. Thus, the indictment fails to allege an essential element of the offense of theft by conversion of leased personal property. "... there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment.” O’Brien v. State, 109 Ga. 51, 52 (35 SE 112) (1900); Martin v. State, 96 Ga. App. 557, 558 (100 SE2d 645) (1957). The judgment must therefore be reversed.

Judgment reversed.

Birdsong, J. concurs. Quillian, P. J., concurs specially.

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Smith, Judge.

Appellant was indicted for the offense of theft by conversion. The trial court, sitting without a jury, found appellant guilty of the offense of theft by conversion of leased personal property. We reverse.

The indictment alleges that appellant "having lawfully obtained certain radio telephone equipment of the value of more [60]*60than $200.00, property of Advanced Tel Com, Inc. under a legal obligation to return said property upon termination of his contract for mobile telephone services with said Advanced Tel Com, Inc. did knowingly convert the property to his own use in violation of said legal obligation by refusing to return same.” We note that the indictment does not allege that any personal property has been "delivered under the terms of a lease or rental agreement.” See Code § 26-1814. The indictment refers only to a "contract for mobile telephone services.” However, we need not determine the effect of such language on the instant prosecution. The indictment cannot support appellant’s conviction because it fails to allege that the owner of the radio telephone equipment has been damaged by the conversion.

Submitted November 20, 1979 Decided March 19, 1980. W. McMillan Walker, for appellant. Phillip R. West, District Attorney, Terry F. Holland, Assistant District Attorney, for appellee.

In our view, "damage” to the owner or lessor of personal property is an essential element of the offense of theft by conversion of leased personal property. We base this view not only on the language of Code § 26-1814, but also on the fact that Code § 26-1808, which sets forth the offense of theft by conversion, requires no allegation or proof of damage.

The indictment in this case does not allege that the owner of the radio telephone equipment was damaged by the conversion. Thus, the indictment fails to allege an essential element of the offense of theft by conversion of leased personal property. "... there can be no conviction for the commission of a crime an essential element of which is not charged in the indictment.” O’Brien v. State, 109 Ga. 51, 52 (35 SE 112) (1900); Martin v. State, 96 Ga. App. 557, 558 (100 SE2d 645) (1957). The judgment must therefore be reversed.

Judgment reversed.

Birdsong, J. concurs. Quillian, P. J., concurs specially.

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267 S.E.2d 500, 154 Ga. App. 59, 1980 Ga. App. LEXIS 2041, Counsel Stack Legal Research, https://law.counselstack.com/opinion/steele-v-state-gactapp-1980.

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