*1 186 cross-action, However, prays damages
2. where the in a stated amount against alleged notify consignor the railroad for the failure to within consignee a pay reasonable time freight had failed to charges, resulting goods being shipped alleged in other loss of the consignor’s petition bankruptcy being accounts due to a in filed consignee, allege any negligence the cross-action fails to or viola- any duty consignor’s tion of of the railroad which caused the loss consignee becoming bankrupt, accounts due to the insolvent and a and sustaining the court did err not the demurrer thereto and in dismiss- ing the same. All the Justices concur. affirmed. 1954 Submitted 1954 Decided October Rehearing denied November Smith, Rogers Kilpatrick, Cody, & McClatchey, Sidney Has- kins, in error.
Marshall, Greene & Neely, DeRieux, Burt contra.
18730. Howard
v.
State.
charging
1. The
embezzzlement under Code
Per
Curiam.
§ 26-2801,
was
quash,
to the demurrer and motion to
which
denying equal protection
required bjr
attacks the statute as
the State
and Federal Constitutions and asserts that the indictment was deficient
describing
(85
State,
the crime. Carter v.
632
E.
S.
2. The
charging separate
indictment contained seventeen counts
crimes
embezzlement,
separate
upon
verdicts were rendered
each count.
grant
by
of a new trial
the court
some
the counts did not
trial
new
on the others. While such indictments
justly
preventing
yet
trial,
condemned as
a fair
it is not as hurtful to
jury
falling
proving
the accused to allow the
to hear evidence
short of
proving
embezzlement as it is to hear evidence
it. For
here-
what has
concerning
subject,
tofore
State,
been said
see Stewart v.
State,
(7) (119
State,
Dohme v.
Berrien v.
Wm. M. Charles West, Solicitor-General, contra. Justice, concurring specially. Chief There can
Duckworth, fide or word in be no bona contention that there is a sentence Code 26-2801 that therein described belong government. is: of the section exact any “Any servant, employed or other or or department, station, officeof this State town, city thereof, embezzle, secrete, county, steal, who shall fraudulently book, carry away any paper, take and money, imprisonment punished by effects, or other years penitentiary and labor in for not less than two years.” In more than view of the decisions of seven numerous Calvin, this court—a few which are State v. R. M. Charlton p. 170, Dec.; (11); Studstill v. 7 Ga. Cook 410); Sweeney 11 Ga. D. 16 Ga. Am. 130; Ricks v. Hester v. *3 Glover v. S. E. Snead provisions 812) unambiguous the —and court can within the 27-701, not, Code § powers (Code, 2-3704), Ann., constitutional limitations of its § statutory requisite contrary defining rule the now the particularity of an found in Code as fol 27-701, indictment § “Every grand jury lows: indictment or accusation of shall sufficiently offense correct, deemed technical and which states the Code, plainly in the terms that charged may easily offense be understood nature Judiciary concerning jury.” duty Nor can unconsti 2-402) laws, expressed (Code, Constitution Ann., tutional § “Legislative in violation this Constitution, —which is: acts Judiciary States, void, United are the Constitution escaped. point, that declare them” —be denied or shall so long time or that countless have persons the law has stood for perform for failure as excuses been convicted thereunder expressed Constitution, judicial duty in the would constitute Depart judicial unworthy of Judicial timidity cowardice declares not be that the Constitution ment. It can overlooked laws, laws, laws, not laws under which not new old that but all that offend the Consti- convicted, have been laws are void and Judiciary tution shall so declare them. In Beall v. Beall, this court said: “To the laws of the capital society, great crime vigilance is necessary to it, equally see to that respected, by those govern, who as well obey.” as those are destined who As pointed out at the beginning, commit the defined in Code it necessary only be an officer that one § agent and embezzle, etc., therein described, irrespective who the owner of such Anyone can clearly see thus working that to for a government to prosecution, excluding all other so working, is the rankest sort of discrimination. This the Con- stitution following forbids language: “Protection to paramount is the duty of government, and shall be impartial complete.” (Ann.) Code 2-102. plain Unless § English deprived can be procedure of meaning, provided Code 26-2801 impartial complete is neither protection. § n Then the Constitution thereon, declaring renders directing void and (Ann.) court to so declare. 2-402. It is neither argument sound judicial nor valid reason, after saying, as was done in Robinson v.
57, 77 Am. St. R. “It necessary seems that it is appropriation belonging another, made of or, in case of a the public, rightfully came possession person charged into the appropriation,” with its then, Carter v. S. E. 884), to assert that this court adheres to and at the view, that same hold time constitutionality not essential to its employer It is embezzled. vided in Code 27-701 and decisions countless of this court *4 that the indictment need only describe crime in Surely of the statute. will no court the established law as to hold that it ever necessary is more than allegations an Therefore, of only possible legal indictment. way be could necessary, as held in Robinson v. State, supra, property to show bélónged to the say for the law to so. is Since' Code 26-2801 does not so subjects government vide, employees prosecution for em bezzling anyone of whomsoever exempting though they thing.
all others do the same It is therefore the kind rankest government of discrimination officials agents and in equal favor of other a denial protection, required by (Ann.) 2-102, and is void. competent
While it legislature to enact valid making law criminal statute, the acts enumerated in this such apply must to all satisfy equal- alike in order to protection requirements of the and Federal State Constitutions. Baugh City See (2a) LaGrange, E.S. equal protection This might obtained, although the law does apply all persons, provided that a valid classification is made and the law applicable is made alike to all members of class. Arthur v. S. E. 637); Geele v. State, E. 2d L. 172 A. R. Such a classification, however, must have a basis bears a direct relationship object purpose legislation. Wool worth Co. v. Harrison, Gibbs v. Milk Control Board Georgia, 185 Geele v. State, Ga. 381, supra; Milk City Moultrie Shed v. Cairo, E.S. illustrate, since the section here subjects under consideration prosecution only persons thereunder having a government, connection with appropriated if the specifically under re quired employing that person, then the classification would be a valid one. The attack here directed to the features of the point statute which only employed by government prosecution thereunder, place but restriction the ownership appropriated. decision in Carter v. supra, is, for the
reasons above stated, unsound and I would overrule it, but enough my disagree associates prevent with me on that overruling this court from it, since it has concurrence of all the. Consequently, holding Justices. the view that is void and statute the indictment should have been dismissed on demurrer, and, reason, judgment for should be reversed, I dissent from in division one, fully but concur in the syllabus divisions and in I am of reversal. authorized to state that Mr. Justice Almand joins me in special concurrence.