59 Ga. App. 595 | Ga. Ct. App. | 1939
Lead Opinion
The defendant, Mrs. Ollie Henley, alias Theresa Eeaves, alias Mrs. D. Krasner, was found “guilty of obtaining money on fictitious checks.” The defendant filed a motion for new trial and amended the same. To the overruling of her motion as amended she excepts. The evidence discloses that Williman was a clerk for the 551 Ponce de Leon Hotel, and was on duty as
Conceding that an accusation drawn under the Code, § 26-3918, would have been sufficient by merely charging that the defendant “obtained of and from J. D. Williman ten dollars in money of the value of $10 with the intent to defraud the said J. D. Williman contrary to the laws of the State,” etc, if the defendant had been convicted under such a general charge in such an indictment he could not, within the period of the statute of limitations, that is within two years prior to the filing of the indictment, have been tried again for obtaining money from Williman with the intent to defraud him, whether he obtained from him money belonging to him, the hotel, to any guest of the hotel, or to any one else who
In 1 Wharton on Criminal Evidence (10th ed.), 368, § 140, it is said that the words in an indictment which are unnecessarily inserted, such as “the averment of ownership, may be expunged when immaterial,” as “ . . where a robbery was alleged to have been committed in the dwelling house of A. B., it was held that a variance as to this was inconsequential, as the crime could be committed there or elsewhere,” and that text writer then lays down a rule for determining when words are surplusage, which rule he states to be that “the test'to apply in all cases is, do the words in question negative the crime intended to be charged? If they do, they are harmful, otherwise not.” In the instant case the State, it is true, can say that if the words were stricken from the indictment the indictment would still be good, but it can not truly say that these words are surplusage and need not be proved, for if we treat them as surplusage, we change the kind of crime charged in the indictment from a particular crime to another crime more general in
In the instant case, the very words in question (“of the property of the said J. D. Williman”) used in the indictment are the ones which will reduce the crime charged from a general charge, under Code, § 26-3918, for “obtaining” money with the intent to
“It is important to note that there is a distinction between possession and mere custody. The owner of goods, by delivering them to another, may give such other person the mere custody or charge of the goods, the technical possession remaining in himself, or he may, by such delivery, divest himself of the possession of the goods.” Grant v. State, 125 Ga. 259, 261 (54 S. E. 191); Rivers v. State, 46 Ga. App. 778 (4) (169 S. E. 360). It is evident in the case at bar that the hotel did not divest itself of the “technical possession” of the money obtained by the defendant. Williman had “mere custody or charge” of the money, and was not the owner, nor did he have the “technical possession” of the money, nor did he have a special property in the money as in the case of a bailee or pledgee. Therefore, the money obtained by the defendant was not “the property of the said J. D. Williman” as charged in the indictment. It has been said, “If the owner of goods, being in possession thereof, places them in the keeping of his servant, either by delivery or permission, the possession still remains in the owner, and the servant has merely the custody. A servant is one who is employed to render personal service to another otherwise than in the pursuit of an independent calling, and who, in such service, remains entirely under the control and direction of the employer.” 18 Am. & Eng. Enc. L. 474; Wall v. State, 75 Ga. 474. There may be a special or qualified delivery which does not amount to delivery of possession, but merely amounts to the passing of custody only. “The owner of goods may deliver them to another person who is not a servant, under such circumstances as to pass only the custody and
The instant case is not a case where the actual possession was in one person, as a bailee or agent, and the constructive possession and ownership was in another person, the bailor or principal. Here the hotel retained the control and also retained legally the possession of the property, and it was obviously in the possession of the hotel and not in the ostensible or averred possession of the clerk. Hildebrand v. People, 15 Am. R. 435, 438. The purpose of the delivery by the hotel to the clerk was that all acts done in relation to the money should be done on tlie owner’s premises, that is, in the .hotel. Thus, the hotel made a special or qualified delivery which did not amount to a delivery of the possession but merely amounted to a delivery of the custody of the money only, as in the case of O’Neal v. State, supra, where it .was said, “The evidence as to ownership was that Robert Hutchinson, as assistant cashier, paid the check presented to him by the accused, 'with funds of the LaGrange National Bank;’ that the $30 so paid was not his property, but was the property of the bank.” There the allegation in the indictment was that the person cheated and defrauded was Robert Hutchinson, and the facts proved showed that the bank and not Hutchinson, as an individual, was cheated and defrauded; and in Jackson v. State, supra, it was said, “In larceny the ownership may be laid in the agent, but not in a servant. 'A mere servant has only the custody of goods, and he can maintain no action for them; hence he has in them no ownership.’ Ownership may be laid in 'any other person having the lawful possession of the article, in distinction from a bare custody thereof.’ 2 Bishop Crim. Procedure, §§ 721, 722.”
There being no proof that Williman, at the time of the commission of the offense charged, was the legal owner of the money, or that he was in the “technical possession” of the property, or that he had such a special property in the money as would sustain this allegation of the indictment, the proof did not conform with this essential allegation and the variance was fatal. O’Neal v. State, supra; Oliver v. State, 15 Ga. App. 452 (2, 3) (83 S. E. 641); Roscoe on Evidence, 422.
The indictment in the present case had four counts. Counts
Judgment reversed.
Dissenting Opinion
dissenting. The averment in tbe indictment that the money, fraudulently obtained by the defendants, “was the property of J. D. Williman,” was unnecessary and mere surplusage, since it was “not descriptive of any material element of the crime, and, therefore, it was not incumbent upon tlie State to prove ity ‘This case does not come within the rule that an immaterial description of a material fact must be proved, but, place being unimportant, it was rather an instance of an. immaterial description of an immaterial fact See Hall v. State, 120 Ga. 142, 144 (47 S. E. 519).” Howell v. State, 29 Ga. App. 174 (2) (114 S. E. 717) In the crime charged in the instant case the ownership of the property obtained by the defendant was immaterial and unimportant, and the allegation in the indictment as to such ownership was “an instance of an immaterial description of an immaterial i&c.t’j/as stated by the Supreme Court in the Hall case, supra. See also, to the same effect, 31 C. J. 837, § 445; Shrouder v. State, 121 Ga. 615 (49 S. E. 702); Ager v. State, 2 Ga. App. 158 (58 S. E. 374); Dunson v. State, 25 Ga. App. 172 (2) (102 S. E. 899); Sparks v. State, 48 Ga. App. 498 (2), 503 (173 S. E. 216); Golden v. State, 45 Ga. App. 501 (165 S. E. 299); Innes v. State, 19 Ga. App. 271 (5) (91 S. E. 339); Berrien v. State, 156 Ga. 380 (6) (119 S. E. 300). Moreover, in the instant case there was no variance, as to the ownership of the property, between the allegations of the indictment and the proof, since the undisputed evidence showed that Williman was in the actual lawful possession of the property, although he was holding it merely as the agent or bailee of another. In Thomas v. State, 27 Ga. App. 38 (2) (107 S. E. 418), this court held: “Proof that certain property alleged to have been stolen was taken from the lawful possession of the person named in the indictment as the owner thereof is sufficient to support the allegation of ownership, although the legal title be in another.” See also Wimbish v. State, 89 Ga. 294 (15 S. E. 325); Bradley v. State, 2 Ga. App. 622 (2) (58 S. E. 1064); Bennett v. State, 28 Ga. App. 235 (110 S. E. 756). In the instant case, as stated in 25 Cyc.