126 Ga. 92 | Ga. | 1906
It will be observed that the defendant was not the mere servant of the prosecutor. He was a person living in the country, while the prosecutor lived at a distance in town. There was no relation of master and servant between them. As to all other matters they were perfectly independent of each other. Under these circumstances, granting that the contentions of the State are true, the prosecutor owned the sheep and the defendant had no interest in them, but had contracted with the prosecutor to shear them and bring the wool to him in town. Under these facts, the relation of the parties would be that of bailor and bailee. The possession of the sheep was in the defendant; the possession of the wool was in the defendant. From the State’s side of the case, such possession, without any mixture of fraud of any character whatever, was voluntarily placed in the defendant by the prosecutor. It is true that it was done with a trust, but nevertheless the possession was actually yielded to the defendant. Under these circumstances, .after being so entrusted, if the defendant committed a larceny of the wool, the offense would be larceny after trust. It is not a case ■of violence to the possession of the prosecutor; for it affirmatively appears that the prosecutor voluntarily parted with his possession, .and the injury results to the prosecutor, not from the thing being fraudulently taken from him, but from a fraudulent disposition by the defendant after the trust had been imposed. Under the facts, there is no simple larceny whatever in the case, and the court should not have charged upon that subject. See, in this connection, Mobley v. State, 114 Ga. 544; Martin v. State, 123 Ga. 478; Fitzgerald v. State, 118 Ga. 856; Abrams v. State, 121 Ga. 170.
Judgment reversed.