5 Ga. App. 80 | Ga. Ct. App. | 1908
George S. Hagood was indicted by the grand jury of Chatham county for a violation of section 194 of the Penal Code. This section reads as follows: “If any person who has been intrusted by another with any money, note, bill of exchange,, bond, check, draft, order for the payment of money, cotton or other produce, or any other article or thing of value, for the purpose of applying the same for the use or benefit of the owner or person delivering it, shall fraudulently convert the same to his own use, he shall be punished,” etc. The indictment contained twenty-one counts, varying the charge only in the amount of money alleged to have been intrusted and fraudulently converted. On his trial the jury found him guilty, and he thereupon filed a motion for a new trial, based on the general grounds and eleven special grounds.
To an intelligent consideration and determination of the questions made in the motion, a general statement of the facts proved by the State is necessary. -Hagood was a collector for the Western Hnion Telegraph Company at Savannah, Georgia, and the indictment charges, that in this capacity he was intrusted by the company with $365.27 in money, the property of the corporation, for the purpose of applying it to the use and benefit of the corporation, by safely keeping the money and accounting for the same, and paying it over promptly to the owner; that after having been so intrusted with the money for the purposes aforesaid, he did wrongfully and fraudulently convert said sum to his own use; the indictment, as before stated, charging in separate counts the fraudulent conversion of separate amounts, aggregating $365.27. Ilagood’s duty as collector for the company was to take the bill or statement of accounts against each customer of the company for telegraphic services, and present the bill or account to the customer, and collect the amount due. Sometimes Hagood would copy, in his own handwriting, these bills or accounts, in small pass-books or account-books, like grocers’ account-books, belonging to a customer. He collected money on the bills or ac
It is unnecessary to set out each case of shortage alleged and proved by the State. The proof shows twenty instances in all, ■of alleged shortages in collections from eight different customers, •covering a period of.time from September, 1906, to September, 1907, the method of procedure in these eases being similar substantially to that used by Hagood in the instance of the Duck-worth collection. The aggregate amount of shortage did not equal the aggregate amount charged in the indictment, the amount proved by the State being less than $100. When Hagood was charged with the shortage, he denied any shortage, claiming that he had paid every cent collected by him to the company. He had been in the employment of the telegraph company for ten years, .and the company’s officers who were witnesses testified that during this time his reputation and conduct had been gojod. The defendant introduced no evidence. He made a statement in which he denied hi¡? guilt, attempted to explain the apparent discrepancy between the amounts collected by him and the amounts paid over to the company, attributed the apparent shortages in the accounts to the loose and careless manner in which the books were kept by the company, and asserted that four of his friends had paid for him to the Western Union Telegraph Company, or to the National Surety Gonapany for the Western Union Telegraph Company, $200, in settlement of the claim of $900 which the Tele.graph Company made against him. He asserted that he paid this amount because of the threat made to have him arrested and prosecuted for this crime, of which he protested his entire innocence. The prosecution, in rebuttal of the statement of the defendant, introduced evidence denying that any demand had been made on him for $900, or that any threat had been made to prosecute him, and evidence that the shortage claimed by the company was $231.27, and that the Western Union Telegraph Company had never received any money from the defendant or from .any one for him in settlement of this shortage. The prosecution further proved a confession made by the defendant of his misappropriation of a portion of the money on one of the accounts
This summary of the evidence is sufficient to show that the verdict is supported, and that the general grounds of the motion for a new trial are without merit, and thal this court ought not to grant a new trial, unless some material and prejudicial error of law was committed by the court in the course of the trial; and, for the purpose of determining this question, we will now take up and consider each one of the special assignments of error made in the motion for new trial.
Counsel for the defendant, on cross-examination of the cashier of the telegraph company, propounded to him this question: “You find, by reference thereto [the indictment], in the first portion of it, it is alleged that the Western Union Telegraph Company intrusted this man with $365.27 in money. You are the bookkeeper; have you got any entry on any book that he was intrusted with $365.27? If so, produce it.” The State objected to this question on the ground of irrelevancy, and the court sustained the objection. We think the court did right. The books were all in evidence and spoke for themselves. Besides, it was not claimed that the defendant was at any time intrusted with this sum, or that he had at any time converted this sum; but it was charged that he had been intrusted with various sums which he had fraudulently converted, aggregating this sum. If the •defendant had been intrusted'with any of the amounts as alleged, and had fraudulently converted any one of them to his own use, how was it material or relevant that the books did not show any single entry that he was intrusted with $365.27? We think it wholly immaterial whether the books showed an entry, in one sum or in separate sums, that the defendant had been intrusted with $365.27. Even if the witness had not been able to show, in reply to the question, any entry, on any book, that the defendant was intrusted with $365.27, his failure would not have been at all significant or illustrative of the defendant’s guilt or innocence. 25 Cyc. 102.