Lead Opinion
(After stating the foregoing facts.) It is well settled that an indictment may in several counts charge a violation of one statute in-different ways;' in which event a general verdict of guilty is good, if the evidence sustains either count. On the other hand., an indictment may charge in different counts the commission of distinct offenses of similar nature; in which event a general verdict of guilty is not good, unless the evidence Sustains each count. Undoubtedly section 192 of the Penal Code defines a distinct offense, and none of the class of cases contemplated by this section were intended to be embraced also in section 189. The latter section (§ 189) defines two separate and distinct offenses. The offenses defined in sections 189 and' 192 are kindred offenses, according to our codé, and may be properly charged in separate counts of the same indictment. The venue of the offense in the case at bar was properly shown to be in Fulton county, and the evidence warranted the verdict finding the defendant guilty as charged. Walker v. State, 117 Ga. 260 (43 S. E. 701) ; Martin v. State, 123 Ga. 478 (51 S. E. 334); Dunn v. State, 82 Ga. 27 (8 S. E. 806, 3 L. R. A. 199); Mangham v. State, 11 Ga. App. 427 (75 S. E. 512); Carter v. State, 143 Ga. 632 (3), 639 (85 S. E. 884).
In the indictment in the case at bar the fourth count, as construed by the trial judge, was not based on the second clause of section 189 of the Penal Code; nor is it in its language necessarily based thereon. No demurrer was filed, and we are not.concerned with the intention of the pleader in this case, for reasons hereinafter stated; nor do we wish to be understood as saying that the fourth count can not properly be considered as based upon the second clause of section 189. We think the pleader undoubtedly meant to charge in the fourth count a, violation of the second clause of this section; and -we are equally sure that this count
Let us examine section 189. This section provides for the punishment of any factor, commission merchant, etc., or any other bailee .with whom any money or any other thing of value may he intrusted or deposited, who shall fraudulently convert the same or any part thereof to his own use, or otherwise dispose of the same or any part thereof without the consent of the owner or bailor, to his injury, and without paying the owner or bailor on demand the value or market price of same. The meaning of the section is to be found in the opinions of the Supreme Court of this State construing the same. ’ In Cody’s case, 100 Ga. 105, Justice Little said that this section “provides for two distinct offenses: (1) If any of the bailees named, with whom any money or other valuable thing shall be intrusted or deposited, shall fraudulently convert the same or any part 'thereof to" his own use, the statute is broken. (2) If any of such bailees with whom the property shall be intrusted or deposited shall dispose of the same to the injury of the bailor (otherwise than to fraudulently convert it to his own use) without the consent of the bailor, and without paying to the owner or bailor, on demand, the full value or market price, he has committed an offense against which the statute provides.” In order to sustain a conviction under the second clause of this section, it is necessary both to aver and prove a demand of the bailee and a refusal by him to pay. It is apparent that the statute is broken when the bailee converts the money to his own use or when he otherwise disposes of it. • To dispose of it “otherwise” is by Jus
Let us consider the fourth count of the indictment in this case, in connection with the code section referred to, as construed by the Supreme Court. .The defendant, Innes, is charged with having received a certain sum of money, for a certain specific purpose, from the bailor, Lois Nelms Dennis, and it is charged that after having so received it he “did wrongfully and fraudulently dispose of said [money] otherwise than by' applying it to the use and Tor the purpose for which it was intrusted by said bailor, without her consent,” etc. On close examination it is apparent that this count does not charge that the bailee, Innes, did otherwise than by converting the money to his own use dispose of it. In order to bring this count under the second clause of section 189 this allegation is absolutely necessary. The charge in the indictment is -that he did dispose of the money otherwise than by applying it to the use and for the purpose for which it was intrusted by the said bailor, Lois Nelms Dennis. He did not, according to this charge, dispose of the money otherwise than by applying it to his own use. The peculiar wording of the fourth count is perfectly consistent with the charge that Innes directly converted to his own use the money with which he was intrusted; and while it may not be inconsistent with a charge that he did otherwise than by converting it directly to his own use dispose of it, this count does not require that construction. Under this count the State might have proved that Innes directly converted the money to his own use; and this proof would not be at variance with the allegation that he did wrongfully and fraudulently dispose of the money “otherwise than by applying it to the use and for the purpose for which it was intrusted by said bailor, Lois Nelms Dennis.” It is true, we think, that the State might have proved that Innes disposed of this money by investing it in bank stock, or by depositing it in a bank, contrary to the trust; but the State did not offer such proof, and the trial judge construed the indictment as a whole to charge the offense of larceny after trust delegated by converting it to the defendant’s own use, and confined the State to proof of direct conversion by the defendant of the money intrusted to him. This, in our opinion, is the conclusion of the whole matter.
Let us examine the charge of the court: “Now this indictment
The general verdict of guilty on an indictment containing more than one count is good where the effect of the ruling of the trial
There is no necessity for a retrial of this case. The facts in the record abundantly support the verdict, and both the language in the fourth count of this indictment and the construction placed thereon by the trial court, which must be taken as the law of this . ease so far as the State is concerned, placed the case under the first clause of section 189 of the Penal Code.
' Judgment affirmed.
Dissenting Opinion
dissenting. I can not agree to the judgment of af-' firmance in this case. It is admitted in the majority opinion that the defendant is not charged with the same offense in different ways under one section of the Penal Code, but is charged with kindred crimes under different sections of the Penal Code, to wit, § 189 and § 192. There are four counts in the indictment. The fourth count charges as follows: “for that the said Victor E. Innes and Ida May Innes, in the county aforesaid, on the 29th day of May, . . 1914, with force and arms, having been then and there intrusted by Lois Nelms Dennis - with the sum of three thousand seven hundred forty-five and 20/100 dollars in money, of the value of three thousand seven hundred forty-five and 20/100 dollars, and the property of said Lois Nelms Dennis, for the purpose of investing said sum of money in lands and real estate in Montana and within a radius of forty-six miles of Lewiston in Montana, and in certain lands and real estate in Sonora county in Mexico, and after having been so intrusted by said bailor, Lois Nelms Dennis, for the purposes herein set forth, did wrongfully and fraudulently dispose of said three thousand seven hundred forty-five and 20/100 dollars otherwise than by applying it to the use and for the purposes for which it was intended by said bailor, without her consent and to her injury, and without said bailees, to wit, Victor E. Innes and Ida May Innes, having paid to said bailor the full value and market price thereof, and without having paid to Mrs. Lillie L. Nelms, administratrix on the estate of said Lois Nelms Dennis, on demand m'ade, the full value and market price thereof, contrary to the laws of said State, the good order, peace, and dignity thereof.”
The trial court construed the fourth count to be under the
While the learned trial judge was a member of this court, the court, in the case of Raiden v. State, 1 Ga. App. 532 (57 S. E. 989), said: “The Penal Code, § 191 [now § 189], makes two
I do not think that Sanders v. State, 86 Ga. 717 (12 S. E. 1058), or Keys v. State, 112 Ga. 392 (37 S. E. 762, 81 Am. St. E. 63), is authority to the contrary. In the Sanders case the indictment charged the defendant with fraudulently converting to his own use certain property or otherwise disposing of the same. The indictment in that case was bad because he was not charged positively with any offense. In the Keys case the indictment was framed under section 192 (then section 194), and charged the defendant with having been intrusted with money for the use and benefit of a named person, and with fraudulently having converted the same to his own use to the injury of and without the consent of the bailor. The court held that the allegation, “without the consent of the owner,” was surplusage. There is only one count in the Sanders case, and only one count in the Cody case, and only one count in the Keys case. Fraudulent conversion was alleged in each of these cases. Now, in the Innes case we find not one count, bu.t four counts, based on kindred statutes. We find in effect four separate indictments. The crime charged in one of. the counts, or . one of the indictments, admittedly is not proved, yet a verdict of guilty is allowed to stand, upon the ground that the fourth count in this indictment is mere surplusage. It is my opinion that the charge of the trial court, that “demand in this case is unnecessary under the law and evidence applicable thereto,” not only did not-serve to eliminate the fourth count in this- indictment, but was erroneous for three reasons: (1) Because, before a conviction could be had on the fourth count, proof of demand was necessary. ' (2) Because,' under the majority opinion in this case, it would
2. There are other exceptions to the charge of the court which are not without merit.
3. In the opinion of the writer the bailment as alleged in the four counts of the indictment is not proved; neither is the fraudulent conversion shown as alleged; and neither is the venue proved.
In my judgment the general verdict of guilty under the evidence is not authorized. Judex damnatur cum nocens absolvitur; but the guilty must be convicted according to law.