STULL v. THE STATE (two cases)., 230 Ga. 99, 196 S.E.2.d 7 (1972)
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Judgment affirmed. All the Justices concur.
Summary
Judgment affirmed. All the Justices concur.
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Walter M. Henritze, Jr., for appellant.
Henry Daniel Stull, Jr., was tried and convicted on two indictments charging him with theft by taking in violation of the provisions of 26-1802 of the Criminal Code of Georgia. His motion for a new trial on the general grounds and on three special grounds filed as to each conviction was overruled and he appeals. Jurisdiction of the appeal is in this court by reason of the fact that the trial court overruled defendant's demurrers to the indictment in each case attacking the constitutionality of 26-1802 of the Criminal Code of Georgia. To that ruling appellant enumerates error.
1. Section 26-1802 (a) of the Criminal Code of Georgia provides: "A person commits theft by taking when he unlawfully takes or, 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 taken or appropriated." Appellant contends that this section is violative of the due process provisions of the State and Federal Constitutions because it is so vague, uncertain and indefinite that it fails to inform persons charged thereunder of the conduct proscribed thereby. This contention is without merit. An unlawful taking or appropriation of the property of another is a taking or appropriation thereof without authority of or contrary to law. Black's Law Dictionary (4th Ed.), p. 1704. Theft or larceny is the taking of the property of another, either from his possession or from the possession of someone holding the same for him, without the owner's consent, and with the intent to deprive the owner of the same or of its value, and to appropriate it or the proceeds thereof to the use and benefit of the person taking. Black's Law Dictionary (4th Ed.), p. 1647. Under 26-1802 the gravamen of the offense is the taking of the property of another against the will of such other.
" 'The uncertainty in a statute which will amount to a denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute, but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved; and a criminal statute is sufficiently definite if its terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.' 16 AmJur2d 954, 552." Mixon v. State,
While the language embodied in the clause, "Regardless of the manner in which said property is taken or appropriated," renders the section sufficiently broad to encompass thefts or larcenies perpetrated by deception as prohibited under 26-1803, and possibly broad enough to encompass other types of theft prohibited by other sections of the Criminal Code of Georgia, this is no impediment to an indictment thereunder. Martin v. State,
and instructed the jury in the language of the Code section under which the accused was charged, and it did not err in refusing the charge requested.
5. The trial court did not abuse its discretion in refusing to order separate trials as to the two indictments. The crimes were similar in nature, and the scheme which resulted in their consummation was substantially identical in each case. It is not apparent that any confusion could possibly have been engendered in the minds of the jury by trying the cases together. This ground of enumerated error is not cause for a reversal.
Lewis R. Slaton, District Attorney, Darryl Cohen, Joel M. Feldman, Carter Goode, for appellee.
1972
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