Opinion
53035.
SUBMITTED NOVEMBER 1, 1976.
DECIDED NOVEMBER 10, 1976. REHEARING DENIED DECEMBER 14, 1976.
Theft by retaining. Rabun Superior Court. Before Judge Gunter.
Cathey Strain, Dennis T. Cathey, for appellant.
V. D. Stockton, District Attorney, Michael H. Crawford, Assistant District Attorney, for appellee.
The appellant, Paul Fair, was convicted by a jury of the offense of theft by retaining stolen property. The evidence showed that on June 20, 1975, 769 cartons of cigarettes were stolen from Tate's Supermarket in Highlands, North Carolina. The cigarettes were later recovered from the appellant's two brothers, Randy and James Fair, who were transporting them in a truck through Rabun County, Georgia. At the trial, one brother testified in detail as to the appellant's part in the theft and transportation of the merchandise. Several other witnesses saw the appellant at 5:00 a. m. at the scene of the theft, saw him in another vehicle accompanying the truck with the cigarettes, and saw him return to the scene of his brothers' apprehension shortly after officials stopped them in Rabun County.
1. The appellant alleges that his conviction rests solely upon the uncorroborated testimony of an accomplice, his brother, Randy. See Code § 38-121. His allegation is without merit, however, because we find sufficient evidence to corroborate the witness. See Birt v. State, 236 Ga. 815 (2) ( 225 S.E.2d 248) (1976); Roberts v. State, 55 Ga. 220 (3) (1875).
2. During his lengthy charge to the jury, the trial judge said, "Now participation in the same criminal act and in the execution of a common criminal intent is necessary to render a person in a legal sense or to render a criminal in a legal sense an accomplice of another criminal." The appellant seeks reversal based upon that portion of the charge, because it allegedly refers to him as a criminal. When taken as a whole, however, the charge was not harmful or prejudicial to the appellant. See Scroggs v. State, 149 Ga. 33 ( 99 S.E. 40) (1919); Terry v. Buffington, 11 Ga. 337 (7) ( 56 AD 423) (1852); Ga. Power Co. v. Hendricks, 130 Ga. App. 733 ( 204 S.E.2d 465) (1974); Burke v. State, 19 Ga. App. 749 ( 92 S.E. 230) (1917).
Judgment affirmed. Bell, C. J., and Clark, J., concur.