SECRIST v. THE STATE, 145 Ga. App. 391

Bell, Chief Judge. Defendant was convicted of theft by taking or shoplifting in violation of Code § 26-1802 (b) (1). The accusation charged that defendant did unlawfully remove from a named mercantile establishment, a leather wallet, a pair of leather earrings and a choker collar "with intent to appropriate the said merchandise, to his, the Defendant’s own use and to deprive the said owner of possession thereof, . . .” Evidence was admitted establishing that defendant was left in charge of a leather goods store by the owner for a short period.

In further support of its case, the state caused the admission of an out-of-court statement of defendant which read in part "I did take a pair of leather earrings and a wallet from the shop. I was going to let Irvin take their cost from my earnings. I also took a three dollar necklace from the shop.” The court charged the jury on the law of confessions. It is argued that this was reversible error as the pre-trial statement was at most an admission. Where a defendant has made only an incriminating statement and not a confession, it is reversible error to charge the law of confession. Pressley v.

State, 201 Ga. 267, 272 (39 SE2d 478). An admission of the main fact, from which the essential elements of the criminal act charged may be inferred, amounts to a confession of the crime itself. Owens v. State, 120 Ga. 296, 299 (48 SE 21). But if the main fact is admitted with a qualifying exclusion of a necessary ingredient of the crime charged, the crime has not been confessed. Owens v. State, supra. The defendant argues that the above underscored portion of his statement denies an intention to deprive the owner of the value of the goods, an essential element of the crime charged.

Therefore his statement was not a confession.

The crime of theft by taking or shoplifting under Code § 26-1802 (b) (1) provides that this crime is committed when there is a removal of merchandise from a mercantile establishment where merchandise is displayed for sale with "the intent of appropriating merchandise to his own use or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . .” (Emphasis supplied.) While defendant’s emphasized part of the statement does reveal the lack of an intention to deprive owner of the value of the goods taken, he was not charged with the taking of these items with that specific intent.

This crime by statutory definition can be committed by removal coupled with any one of the three described states of mind or specific intents. Defendant admitted all the elements of the crime charged for from the main fact of the removal of goods from the store it can be inferred that he intended to appropriate the merchandise to his own use as well as intending to deprive the owner of its possession. Applying the rules of Owens v. State, supra, the defendant’s statement amounts to a complete admission of the crime alleged in the accusation.

Whether he intended to pay for them is a matter not material to his guilt or innocence as the accusation did not allege an intention to deprive the owner of the value of the goods. There was no error. Submitted November 1, 1977 Decided February 22, 1978 Rehearing denied March 21, 1978 — Cert, applied for. Jack H. Affleck, for appellant. Ken Stula, Solicitor, for appellee. Judgment affirmed. Quillian, P. J., Webb, McMurray, Shulman, Banke and Birdsong, JJ., concur. Deen, P. J., and Smith, J., dissent.