2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 8 - Offenses Involving Theft
Article 1 - Theft
§ 16-8-11. Venue for Purposes of Code Sections 16-8-2 Through 16-8-9 and 16-8-13 Through 16-8-15

In a prosecution under Code Sections 16-8-2 through 16-8-9 and 16-8-13 through 16-8-15, the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.In addition, in any prosecution under Code Section 16-8-4 in which there is a written rental agreement for personal property, the crime shall also be considered to have been committed in the county in which the accused signed the rental agreement.

(Code 1933, § 26-1811, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1972, p. 841, § 3; Ga. L. 1994, p. 650, § 2.)

- Venue generally, Ga. Const. 1983, Art. VI, Sec. II, Para. VI and § 17-2-2.

- For annual survey of criminal law, see 38 Mercer L. Rev. 129 (1986). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 126 (1994).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the provisions, decisions under former Penal Code 1910, § 152 and former Code 1933, § 26-2602, as it read prior to revision of title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section.

- Former Code 1933, § 26-1811 (see now O.C.G.A. § 16-8-11) did not violate Ga. Const. 1976, Art. VI, Sec. XIV, Para. VI (see now Ga. Const. 1983, Art. VI, Sec. II, Para. VI). Crosby v. State, 232 Ga. 599, 207 S.E.2d 515 (1974).

Purpose of O.C.G.A. § 16-8-11 is to provide for establishment of venue in situations where there is either some doubt as to which county was the scene of the crime or where the crime in fact occurred in more than one county. Its purpose is the same as O.C.G.A. § 17-2-2. Bundren v. State, 247 Ga. 180, 274 S.E.2d 455 (1981).

- Statute fixing the venue for the trial of a thief in any county into which the thief may carry the property is but declaratory of the common law. Sanders v. State, 67 Ga. App. 706, 21 S.E.2d 276 (1942) (decided under former Code 1933, § 26-2602).

- One who has bought or received stolen property has exercised control over that property sufficient to warrant venue where the property was bought or received. Stephens v. State, 164 Ga. App. 398, 297 S.E.2d 90 (1982).

- In an action for theft by taking, venue was properly shown as the trial court was authorized to find that deposit of the subject check had been made by the defendant or someone acting on the defendant's behalf; specifically, the check was deposited into a business account for the defendant's wife and the defendant identified the defendant's new company to the homeowner and the general contractor at a meeting. Erick v. State, 322 Ga. App. 71, 744 S.E.2d 69 (2013).

In a theft by taking case involving the theft of donations to an animal shelter, the evidence was sufficient to prove that venue was proper in Rabun County, Georgia, as the defendant exercised control over the money in that county because the state elicited direct testimony that the animal shelter was located in that county, that the defendant's residence was located in that county, that one bank used in the theft was located in that county, that one branch of another bank was located in that county, and that the defendant's "fundraising" efforts were conducted in that county, on either the defendant's home or work computer. Kilby v. State, 335 Ga. App. 238, 780 S.E.2d 411 (2015), cert. denied, No. S16C0653, No. S16C0653, 2016 Ga. LEXIS 437 (Ga. 2016).

- Thief may be tried in any one of the counties into which the thief may so pass. The crime is regarded as completely committed in all its parts in each county; as much so in the last county as in the first. Sanders v. State, 67 Ga. App. 706, 21 S.E.2d 276 (1942) (decided under former Code 1933, § 26-2602).

- Indictment is sufficient if the indictment alleges that the asportation occurred in the latter county, without any reference to any other county. Sanders v. State, 67 Ga. App. 706, 21 S.E.2d 276 (1942) (decided under former Code 1933, § 26-2602).

Venue of embezzlement was properly laid in county where defendant obtained possession of notes and presumptively formed the criminal intent. Denmark v. State, 44 Ga. App. 157, 161 S.E. 286 (1931) (decided under former Penal Code 1910, § 152).

If one embezzles funds from a branch office in Atlanta of a corporation which has its main office in New York City, it could not be reasonably contended that the accused would have to be tried in New York. Denmark v. State, 44 Ga. App. 157, 161 S.E. 286 (1931) (decided under former Penal Code 1910, § 152).

In theft by conversion cases, when allegedly converted property is money, two options are available to state regarding venue: first, the state can proceed in the county where the accused received the money; second, the state can produce evidence tracing funds disbursed in one county (where case is being prosecuted) back to an account or other source in the origin county, showing further that the funds were not disbursed in accordance with the contract provisions governing use of funds. Stowe v. State, 163 Ga. App. 535, 295 S.E.2d 209 (1982).

In prosecution for theft by conversion of a portion of an account, funds properly spent were not "subject of the theft," but only those funds alleged to have been spent unlawfully; thus, for venue purposes, burden was upon state to produce evidence that appellant exercised control over allegedly converted funds in county where case was prosecuted. Stowe v. State, 163 Ga. App. 535, 295 S.E.2d 209 (1982).

- Venue in prosecution for theft by taking involving defendants' taking checks in one county and depositing them in their bank account in another county was proper in the county where the checks were taken. Hawkins v. State, 167 Ga. App. 143, 305 S.E.2d 797 (1983).

In a prosecution for theft by deception, venue was proper where the evidence showed that defendant's agent obtained a check for defendant in the forum county at the defendant's direction and subjected it to defendant's control. Arnold v. State, 210 Ga. App. 843, 437 S.E.2d 844 (1993).

Venue was proper in the county where defendant exercised control over a stolen vehicle but drove the vehicle to another county. Kennon v. State, 232 Ga. App. 494, 502 S.E.2d 330 (1998).

Venue for defendant's theft by receiving trial was proper in Forsyth County as the deputy stopped the defendant driving a stolen car outside of a car dealership in Forsyth County; thus, the defendant exercised control over the stolen car in Forsyth County. Petty v. State, 271 Ga. App. 547, 610 S.E.2d 169 (2005).

Venue was appropriate under O.C.G.A. § 16-8-11 in DeKalb County for a defendant's prosecution for theft by deception as the defendant deposited a stolen check and withdrew funds from the victim's account via an ATM at a bank branch there. Parks v. State, 294 Ga. App. 646, 669 S.E.2d 684 (2008).

Evidence was sufficient to establish venue in Hall County for a theft by deception charge because a witness testified that at the defendant's request, the witness placed a check in the mailbox at a rental house, and that occurred the same day defendant cashed the check; the police officer who responded to the witness's call testified that the house was located in Hall County. Forrester v. State, 315 Ga. App. 1, 726 S.E.2d 476 (2012).

Venue in Georgia was proper, despite the car being leased by the defendant in Tennessee and the conversion taking place well before arrival in Georgia, because the defendant was seen exercising control over the car in Georgia in Gordon County; thus, venue was appropriate in that county. Jones v. State, 337 Ga. App. 687, 787 S.E.2d 330 (2016).

- Evidence showed that the defendant borrowed a co-worker's vehicle containing a handgun, drove away, and never returned either the vehicle or the gun, and that these incidents occurred in White County, Georgia. This evidence was sufficient to prove venue in White County under O.C.G.A. § 16-8-11, as the evidence showed that, while in White County, defendant exercised control over the vehicle and the gun, and also allowed the jury to infer intent to steal the vehicle and firearm in White County. Couch v. State, 256 Ga. App. 822, 570 S.E.2d 57 (2002).

Venue was proper under O.C.G.A. § 16-8-11 for a count of theft by taking under O.C.G.A. § 16-8-2 regarding the stealing of furniture from the decedent's residence in Chatham County by the defendant, who was the executrix, as theft by taking occurred in any county in which a defendant exercised control over the subject property. Christian v. State, 288 Ga. App. 546, 654 S.E.2d 452 (2007), overruled on other grounds by Williams v. State, 838 S.E.2d 235, 2020 Ga. LEXIS 50 (Ga. 2020).

Defendant's conviction for theft by deception, in violation of O.C.G.A. § 16-8-3, was reversed because no evidence was presented that the defendant had exercised control over the wire transfer funds in Morgan County, Georgia, where the trial was had on the charge. Davis v. State, 322 Ga. App. 826, 747 S.E.2d 19 (2013).

Sufficient evidence supported the defendant's conviction for theft by taking since the evidence showed that the defendant never used the funds borrowed for relocating the Florida plant, as promised, and the loan was secured with equipment that the defendant did not own; however, the prosecution failed to prove venue was proper in Dodge County, Georgia, since although the contracts were executed in Dodge County, there was no evidence that the defendant exercised any control over the $350,000 in Dodge County. Davis v. State, 326 Ga. App. 279, 754 S.E.2d 815 (2014).

Evidence that the tractor was stolen and recovered in Douglas County, the defendant went to the sheriff's office and informed the deputy that the defendant owned the tractor, and the defendant's testimony that the defendant lived in Douglas County for about seven years was sufficient to establish that the defendant exercised control over the stolen tractor in Douglas County and, thus, venue there was appropriate. Diaz v. State, 348 Ga. App. 256, 820 S.E.2d 249 (2018), cert. denied, S20C0591, 2019 Ga. LEXIS 542 (Ga. 2019).

- Venue in the county in which defendant building contractor's agent received a check from the defendant's customer was sufficiently established by defendant's admission that defendant received payments from no customer and had designated the agent as the person to receive the check. Queen v. State, 210 Ga. App. 588, 436 S.E.2d 714 (1993).

State failed to establish venue when the indictment was for theft by taking from a trust which at all times was located in another state, not in the county where the trust beneficiary lived. DeVine v. State, 229 Ga. App. 346, 494 S.E.2d 87 (1997).

State failed to prove venue for armed robbery and hijacking a motor vehicle since the facts showed that the victim was forced at gunpoint into the victim's car in a parking lot in one county and then ordered the victim to drive into a second county (the place of trial) where the victim was taken from the car and shot; both offenses were complete in the first county, and neither O.C.G.A. § 16-8-11 nor O.C.G.A. § 17-2-2(d) were applicable to confer venue in the second county. Bradley v. State, 272 Ga. 740, 533 S.E.2d 727 (2000).

Conviction for theft by taking was reversed where the state failed to properly establish venue. There was no evidence that defendant received the money in Fayette County, and the state did not show that defendant spent any of the money in Fayette County. Naylor v. State, 257 Ga. App. 899, 572 S.E.2d 410 (2002).

Evidence showed that the defendant resided in a forum county during the time the defendant was persuading the victim to give the defendant money to invest in federal government securities and that the defendant even showed the victim documents that the defendant authored that contained a forum county address and phone number; accordingly, venue was proper in the forum county in the defendant's case in which the defendant did not invest the victim's money as defendant said the defendant would do, but instead transferred the money into entities controlled by the defendant. Gould v. State, 273 Ga. App. 155, 614 S.E.2d 252 (2005).

Despite the defendant's claim that venue was not proper in Jackson County because the defendant exerted no meaningful control over funds until the defendant withdrew the funds in Banks County, the money was subject to the defendant's control after the money entered the defendant's account in Jackson County, and thus venue was proper in Jackson County, O.C.G.A. § 16-8-11. Williams v. State, 297 Ga. App. 150, 676 S.E.2d 805 (2009).

State clearly demonstrated that venue was proper in Dawson County, Georgia for the defendant's trial for misdemeanor theft by receiving, O.C.G.A. § 16-8-7, where the defendant began driving away in a vehicle containing stolen goods. Dixson v. State, 313 Ga. App. 379, 721 S.E.2d 555 (2011).

Evidence was sufficient to establish venue beyond a reasonable doubt and to sustain the defendant's conviction for theft by taking because the state established that the defendant wrote checks at a company's county office, the amount of the check cashed exceeded the amount entered into the computer register, and the total amount of the difference was more than $500; the company president testified that the company was located in the county where the defendant's trial was held and that the defendant worked at the company office and then began working from home. Gautreaux v. State, 314 Ga. App. 103, 722 S.E.2d 915 (2012).

Venue was sufficiently established in Cobb County, Georgia, pursuant to O.C.G.A. § 16-8-11 in the defendant's trial for theft by taking in violation of O.C.G.A. § 16-8-2 because a Secret Service agent testified that during the investigation, the agent discovered that checks disbursed from the victims' loans were sent to the defendant at the defendant's mailbox located in Cobb County. Bearden v. State, 316 Ga. App. 721, 728 S.E.2d 874 (2012).

Cited in Cagle v. State, 132 Ga. App. 227, 207 S.E.2d 703 (1974); Henderson v. State, 134 Ga. App. 898, 216 S.E.2d 696 (1975); Barfield v. State, 149 Ga. App. 166, 253 S.E.2d 781 (1979); Moore v. State, 153 Ga. App. 49, 264 S.E.2d 538 (1980); Salter v. State, 163 Ga. App. 655, 294 S.E.2d 612 (1982); Miller v. State, 174 Ga. App. 703, 331 S.E.2d 616 (1985); Jordan v. State, 242 Ga. App. 547, 528 S.E.2d 858 (2000); Travis v. State, 243 Ga. App. 77, 532 S.E.2d 430 (2000); Pruitt v. State, 245 Ga. App. 801, 538 S.E.2d 874 (2000); Bradley v. State, 272 Ga. 740, 533 S.E.2d 727 (2000).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21 Am. Jur. 2d, Criminal Law, §§ 464, 469.

- Where is embezzlement committed for purposes of territorial jurisdiction or venue, 80 A.L.R.3d 514.

Fact that gun was broken, dismantled, or inoperable as affecting criminal responsibility under weapons statute, 81 A.L.R.4th 745.