8 Ga. App. 522 | Ga. Ct. App. | 1911
Cook was convicted of embezzlement, under the following indictment (omitting the formal parts): “Being then and there in the employ of ‘State Council of Georgia, Junior Order of United American Mechanics’, a corporation and corporate body under the laws of Georgia, as financial secretary of said corporation, he, the said C. W. Cook, did, by virtue of his office and employment as such financial secretary, have in his custody and control, and had access to the money of said corporation, did of the money of said corporation embezzle, steal, and secrete, and wrong-, fully and fraudulently take, steal, and carry away, with intent to steal the same, seven hundred and twenty-five dollars in money, of the value of seven hundred and twenty-five dollars, and the property of said ‘State Council of Georgia, Junior Order of United American Mechanics,’ ” etc. His writ of error challenges the legality of his conviction, on the general ground that there was a fatal variance between the allegata and the probata; this objection being raised by requests to charge, objections to the charge as given, and a consideration of the evidence. The specific objections are as follows: (1) That the indictment charges that the defendant was the “financial secretary” in the employ of “State Council of Georgia, Junior Order of United American Mechanics,” while the evidence indisputably shows that he was not financial secretary of the corporation named in the indictment, but was “financial secretary of Enterprise Council No. 1, Junior Order of United American Mechanics.” (2) That the indictment alleges that the money-which the defendant was charged with embezzling was the property of the “State Council of Georgia, Junior Order of United American Mechanics,” when the evidence showed that it was not the property of the corporation mentioned, but was the property of “Enterprise Council No. 1, Junior Order of United American Mechanics.” (3) That the money alleged to have been embezzled was, at the time of the alleged embezzlement, in the possession of “Enterprise Council No. 1, Junior Order of United American Mechanics” and had never been paid over to, or had never come into the possession of, the “State Council of Georgia, Junior Order of United American Mechanics.” (4) That neither the “State Council of Georgia, Junior Order of United American Mechanics,” nor “Enterprise Council, No. 1, Junior Order of United American Mechanics,” was a corporation of the State of Georgia, and, there
The evidence, substantially stated, illustrating the various points thus raised, is as follows: The above-named order was of a benevolent character, having no capital stock, its purposes being “to maintain and promote the interests of Americans,” “to assist them in obtaining employment and to encourage them in business,” to afford relief to members thereof and to defray the expenses of their funerals, to alleviate distress among the members, and to promote and maintain a National Orphans’ Home, to uphold the American school system, to prevent interference therewith, and to encourage the reading of the Holy Bible in the schools thereof, etc. Of this order there was what was known as a National Council, denominated the “Junior Order of United American Mechanics of the United States,” this National Council being located at Philadelphia, Pa. Subordinate to this National Council, and operating under a warrant of- charter from the National Council, there was a body known as the “State Council of Georgia, Junior Order of United American Mechanics,” and there were similar bodies in other States. Then there were “councils” subordinate to the State Council, located at different points'in the State, operating by authority granted to ithem both by the State Council and the National Council, and having different distinguishing names, the name of the subordinate council in the present case being “Enterprise Council No. 1, Junior Order of United American Mechanics.” The purposes of the order are accomplished by an annual tax assessed upon the members thereof, and each subordinate or local council collects the assessments from its members and turns over the money so collected through its proper officer to the State Council-of the State in which'it is situated. This settlement by the subordinate lodges is made to the State. Council quarterly. A certain proportion of the amount so collected is turned over to the State Council, while another proportion is retained by the subordinate council for the purpose of expenses and benevolence.
The evidence applicable to the particular case now under consideration shows that the corporation designated in the indictment as “State Council of Georgia, Junior Order of United American Me
The evidence clearly shows (indeed it was not denied) that, as financial secretary, the defendant had collected the amount of mone}1' set out in the indictment, or at least a large part thereof, and had failed to turn any of it over to the treasurer of the local council as he was required to do, and the fraudulent conversion by him of that money which came into his hands as financial secretary of the local council was clearly established. In other words, his moral guilt is admitted, but his legal guilt, for the technical reasons above set out, is denied. We think that under the evidence there is no material variance between the allegata and the probata on any of the grounds relied upon by the plaintiff in error. Section 188 of the Penal Code of 1895 provides, that “any officer, servant or other person employed in any department, station, or office in any bank, or other corporate body in this State, or any
We think also that the allegation in the indictment that the money alleged to have been embezzled was the property of the State Council was substantially proved as alleged. The undisputed evidence shows, that the dues and assessments were fixed by the State Council; that these dues and assessments were collected through the officers of the local council, and a portion of the amount so collected was to be paid over quarterly to the State Council, and a portion retained by the local council solely for the purpose of ap
We think also that the allegation in the indictment that the corporation was a corporate body of this State was proved. Enterprise Council No. 1 was simply a local branch of the State Council, which latter council was duly incorporated under the laws of this State and was duly authorized to establish such branch council. The local branch was operating solely under the franchises granted to the State Council by the superior court of Eulton county. We think the decision of the Supreme Court in the cáse of Cory v. State, 55 Ga. 237, relied upon by plaintiff in error to show that the defendant was not an officer of any corporation of this State, and therefore was not indictable for the offense of embezzlement, does not support his contention.. The court m that decision holds that a branch office of the Freedman’s Saving and Trust Company, incorporated by an act of Congress, and located m the city of Washington, is not “a bank or corporate body m this State,” within the meaning of the code section cited, supra (Penal Code of 1895, § 188), and that a person, as a casftier of such company in Atlanta, Georgia, no law of the United States or of this State having authorized the establishment of a branch m Georgia, can not be convicted of the crime of embezzlement under said section. Here the local council was established and operated as a branch or subordinate council of the State Council, which was incorporated under .the laws of Georgia. It certainly can not be seriously contended that the local or subordinate council, which owes its existence entirely to the parent order, to wit, the State Council, and which exercises its function solely by reason of the fact that it does exist as a part of the State Council, exercises its functions without authority of the State and without the sanction of any State law.
Another contention of learned counsel for the plaintiff in error is that the money alleged to have been embezzled was shown by the evidence to have been in the exclusive possession of the local eoun
The evidence clearly showing that the defendant, as a trusted officer of the 'subordinate or local branch of the State Council, fraudulently converted the money set out in the indictment, which had come into his hands by reason of, his position of trust, his conviction was demanded, and we do not think that any of the technical objections to the legality of the conviction are of sufficient importance to require the grant of another trial.
Judgment affirmed.