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SMITH et al. v. THE STATE.
Theft by taking. Washington State Court. Before Judge Cannon
from Jefferson State Court.
CARLEY, Judge.
Appellants were tried before a jury and convicted of theft by taking. Their motion for new trial was denied and they appeal from the judgments of conviction and sentences entered on the guilty verdicts.
Appellants acknowledged at trial that they had removed the blocks from their original storage place to certain property be longing to appellant Allison, which was the location where they were subsequently found. However, appellant Smith, who was the executor of his mother's estate, defended his act of taking the blocks by asserting that they had been purchased by his mother. According to appellant Smith, his only intent in removing the blocks was to protect (from pilfering) property belonging to his mother's estate. Appellant Allison asserted that he was only assisting appellant Smith, the executor, in the performance of this "justifiable" act of protecting the property belonging to Mrs. Smith's estate. Other than appellant Smith's assertions, nothing was offered at trial to substantiate the claim that the blocks had been purchased by and belonged to the deceased mother. However, Donald Smith produced uncontroverted documentary evidence to prove that he had paid for the blocks and that the property was in fact his. In addition, there was evidence that, when confronted during the act of taking the blocks, appellant Smith made no claim that he was acting in his capacity as executor to protect his mother's estate. Instead, the testimony was that appellant Smith asserted to an eyewitness to the removal of the blocks that the building material was his and that he had the check to prove it. No such check was produced at trial.
Under this evidence, it was for the jury to determine whether the appellants' act of removing the blocks from their storage place to appellant Allison's property was accomplished with the criminal intent to deprive Donald Smith of his property or was instead a justifiable act. See generally Jerome v. State, 143 Ga. App. 649 (239 SE2d 541) (1977). The evidence would have authorized a finding that, under a knowingly false claim of personal ownership by appellant Smith, the blocks which belonged to Donald Smith were unlawfully removed. The evidence would have also authorized a finding that appellants were only acting with the justifiable, though mistaken, intent to remove estate property for purposes of safekeeping. The issue of fact concerning appellants' intent was resolved contrary to their contentions in that regard. After a careful review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).
Robert W. Wommack, Jr., Solicitor, for appellee.
Arthur L. Walker, for appellants.
Thursday May 21 20:38 EDT

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