47 Ga. App. 323 | Ga. Ct. App. | 1933
E. E. Clack was indicted for and convicted of the offense of larceny after trust. The indictment alleged: “The grand jurors [of Hall county] . . charge and accuse E. E. Clack, of the county and State aforesaid, with the offense of larceny after trust, for that the said accused, on the 12th day of November in the year 1931, in the county aforesaid, did then and there, unlawfully and with force and arms, after having been intrusted by W. S. Phillips and W. P. Phillips with a certain spotted cow, dehorned, named Pet, of the value of $30.00, and with two red Duroc pigs of the value of $22.00, and with $5.00 in money of the value of $5.00, for the purpose of applying the same for the use and benefit of the said W. S. Phillips and W. P. Phillips by turning the same and the proceeds thereof over to the Gainesville Chevrolet Company in settlement of a note owed said company by said W. P. Phillips, did fraudulently convert the same to his own use.” The testimony of W. S. Phillips, sworn for the State, at the most is very vague and indefinite, if not contradictory. He swore that his son, W. P. Phillips, was indebted to the Gainesville Chevrolet Company by note, and that the transaction alleged in the indictment took place at the home of his son on the county line
The next question raised by the defendant is whether there is a fatal variance between the allegations of the indictment and the proof submitted on the trial, which in fact amounts to the question whether the verdict is contrary to the law and evidence. It is well settled that in order to convict under a larceny after trust indictment the State must prove the trust as laid in the indictment. To allege one trust and prove another would be fatal. The indictment here alleges¡ a trust created between W. S. Phillips and W. P. Phillips, on the one hand, and E. E. Clack on the other, and the indictment further alleges that the trust was created “for the purpose of applying the same for the use and benefit” of W. S. and W, P. Phillips. It is well to say here, before going further,
Grounds 5, 6, and 7 of the motion for new trial are without merit. We might say, however, in passing* that proof that money was intrusted to a person, where it is further shown that the purpose of the trust was not performed, and a demand for the money and a failure to pay, constitute, in law, direct proof of a conver
Judgment reversed.