Opinion
54566.
SUBMITTED OCTOBER 5, 1977.
DECIDED OCTOBER 26, 1977.
Theft by taking. Cobb State Court. Before Judge White.
Paul S. Liston, for appellant.
Herbert A. Rivers, Solicitor, Ray B. Gary, Jr., Assistant Solicitor, for appellee.
The defendant appeals from a conviction of theft by taking on the general grounds only. The evidence is uncontroverted that Jerome, after purchasing one article at Sears Roebuck, went to another department and picked up two tennis rackets, then to a third department where he purchased paint, and that he left the store with two purchases charged to the account of his mother, a store employee, and with the tennis rackets, which had not been charged or paid for. Thus the only question is whether he removed the rackets through inadvertence or with intent to steal. In such a case the jury, if the case is being tried before a jury, should be charged, or the court if without a jury should weigh, the elements of "`knowledgeable possession." Tift v. State, 133 Ga. App. 455 (2) ( 211 S.E.2d 409). But whether or not mens rea, the specific intent to do an unlawful act, exists, is a question of fact. "The question of criminal intent is for the jury and not for the court." Brittain v. State, 41 Ga. App. 577 (2) ( 153 S.E. 622). The evidence shows that the defendant took the tennis rackets to another department, that he failed to call them to the attention of the paint salesman, and that he did not check his sales slip to see whether they had been billed. The question of felonious intent remains for the trier of fact.
Judgment affirmed. Webb and Birdsong, JJ., concur.