Opinion
54009.
ARGUED MAY 23, 1977.
DECIDED JUNE 30, 1977.
Theft by receiving. Hall State Court. Before Judge Smith.
Whelchel, Dunlap Gignilliat, John A. Gram, for appellant.
Douglas E. Smith, Solicitor, for appellee.
Defendant was convicted of theft by receiving stolen property and sentenced to pay a fine of $100 and to 12 months confinement to be served on probation on payment of the fine. Defendant paid the fine. Held:
1. The state, relying on Kowalski v. State, 139 Ga. App. 12 ( 228 S.E.2d 19), urges that the appeal is moot by reason of payment of the fine. In Chaplin v. State, 141 Ga. App. 788, 790 ( 234 S.E.2d 330), we held that payment of a fine in a criminal case does not moot the appeal and expressly overruled Edwards v. City of Albany, 136 Ga. App. 488 ( 221 S.E.2d 681) and all cases in conflict with Chaplin. Kowalski falls in that category.
2. The state's evidence was limited to a showing that at a drive-in-theatre owned by John Thompson a drive-in auto speaker was seen in the rear of a Vega automobile driven by defendant. It had been connected up with a radio or tape recorder in the car. A security guard asked the defendant to open up the rear, which he did. The guard noted the speaker was stamped "Thompson." The guard testified that the speaker along with several thousand others had been stolen from the theatre. Defendant testified that the Vega belonged to his brother-in-law who had borrowed defendant's van to go camping; and when he obtained the Vega he did not know that the speaker was in the car. The state's case is fatally deficient in that knowledge that the goods were stolen, an essential element of the offense of receiving stolen property, is lacking. As in Shorts v. State, 137 Ga. App. 314 ( 223 S.E.2d 504), all that the state proved was that defendant was in possession of stolen property which is insufficient standing alone to show the essential element of guilty knowledge. The evidence will not authorize the conviction.
Judgment reversed. McMurray and Smith, JJ., concur.