76 Ga. 551 | Ga. | 1886
George T. Jackson, who, as president of the “Enterprise Manufacturing Company,” was entrusted with and had control of the funds belonging to that corporation, was convicted of embezzling, secreting and stealing one hundred and seventeen thousand six hundred and sixty-seven dollars and twenty-four cents of the same, on an indictment framed under section 4421 of the Code, and which alleged, in substance,
“ That the said George T. Jackson, in the county aforesaid, on the first day of November, eighteen hundred and eighty-two, being then and there President of The Enterprise Manufacturing Company, a corporation and corporate body under the laws of Georgia, and located in said county and state, and a3 such president, having the general management of the business and the control of the funds of said company, and having in his trust, custody and control large sums of money belonging to said The Enterprise Manufacturing Company, to-wit: One hundred and seventeen thousand six hundred and sixty-seyen ftf0 dollars, and by him deposited in the Bank of Augusta and in the Commercial Bank of Augusta, corporations under the laws of Georgia, subject to the check of the said George T. Jackson president as aforesaid, and entrusted to the said George T. Jackson, as president aforesaid, to be applied for the use and ben* efit of said company only, did then and there embezzle, steal, secrete, fraudulently take and carry away the said sum of one hundred and seventeen thousand six hundred and sixty-seven dollars, of the value of one hundred and seventeen thousand six hundred and sixty-seven dollars, of the property of the said The Enterprise Manufacturing Company, by receiving and depositing said money as aforesaid in the banks aforesaid as president aforesaid at divers times and in divers sums, and thereafter, at divers times and in divers sums, checking out the same as president and converting it to his own private use, and by causing to be made in the books*557 of said company, then and there, false entries to conceal and secrete said embezzlement of said money.
“ The following is a list showing, so far as the same is known to this grand jury, the numbers, amounts and dates and orders of the checks signed by the said George T. Jackson, president, and on which the aforesaid money or part thereof was drawn by the said George T. Jackson and by him applied to his own use fraudulent'y, and by him embezzled, secreted and stolen as aforesaid. (Here follows a list of the checks, numbering three hundred and two, and covering a period of time from June 7th, 1879, to October 23d, 1882.)
“And the grand jurors aforesaid, on their oaths aforesaid, do further say, that so many of the acts herein alleged as are indicated by checks herein described and bearing date not within the statute of limitations of four years were unknown until a very recent date, to-wit: until on or about the first of September, 1884.
“Wherefore, the grand jurors aforesaid, in the name and behalf of the citizens aforesaid, and on their oaths aforesaid, do charge the said George T, Jackson is guilty of the offense of embezzlement aforesaid in the manner and form aforesaid.”
Defendant, on being arraigned, demurred to the indictment upon the following grounds:
(1.) Because said indictment in a single count joins more than one offense committed at different times, and of more than one kind of property at different times.
(2.) Because thére is no allegation in said indictment by whom the property alleged to have been embezzled : was entrusted to said George T. Jackson; nor that he received the same by virtue of his office as president of said Enterprise Manufacturing Company.
(3.) Because the-facts charged in said indictment do not constitute the offense of embezzlement.
(4.) Because there is no such crime or offense under the laws of Georgia- as embezzlement.
(5.) Because there is no.sufficient description nor specification in said indictment of the property alleged to have been embezzled.
(6J Because material allegations in said indictment are in the alternative.
(7.) Because said indictment is bad for repugnancy.
(.8.) Because said indictment does not state the offense
(9.) Because said indictment does not charge the offense in the terms and language of the Code of the State, nor so plainly that the nature of the offense charged may be easily understood by the jury.
(10.) Because some of the acts in said indictment alleged as constituting the said offense of embezzlement are barred by the statute of limitations in such cases made and provided.
(11.) Because said indictment is loose, vague, indefinite, uncertain and contradictory, all of which he is ready to verify.
Which demurrer, after argument, was overruled by the court upon each and every ground.
Defendant then filed pleas in abatement, which were also overruled, but which, in most instances, it will suffice to state generally, as the questions made by several of them had been recently decided adversely to him in other cases brought to the same term of this court, and which will be hereafter more particularly referred to. These were properly abandoned on the hearing. Three of them, viz., two in relation to disqualified grand jurors, and one in reference to entering a nolle prosequi and preferring another indictment after demand for trial had been made upon t he former, were disposed of upon general and the remaining one upon special demurrer. This is that plea, and the answer to the same:
“ For further plea in abatement of said indictment, defendant says that Mathew Bice, Lawrence Adams, Daniel F. Oargil and Frank A. Calhoun, whose names appear as grand-jurors upon said bill of indictment, and who acted as such in finding said bill, are and were incompetent to act as such, because their names do not appear upon any certified list of grand-jurors of said county, nor in the book certified, as by law required, but their names only appear upon a book in, upon and tr which there is no certificate, and said book contains no certificate signed by the clerk of said court, the ordinary and jury commissioners, as required by §3910 (f) of the Code of Georgia; and the names of the other grand-jurors upon said bill of indict*559 ment appear in said uncertified book, and also upon a book properly certified, but, by law, the list of grand-jurors must have been revised by the jury-commissioners since the date of the certificate to said book attached; therefore defendant says that said bill was not found by a legally constituted grand-jury.”
“ That admitting, as it does by its demurrer, that the list upon which appear the names of the grand-jurors named in said plea was not, at the time of the making of said plea, certified in accordance with section 3910 (f) of the Code of Georgia, the state of Georgia says that the failure to certify said list as aforesaid is not sufficient to render said jurors incompetent.
“ In answer to the third plea of abatement says that the names of the grand-jurors mentioned in the third plea in abatement were, at the time of their being summoned, as grand-jurors and their service as grand-jurors, borne on a listoifiy (duly?), made up by the jury commissioners of said county. That their names were deposited by the said jury commissioners in the grand-jury box. That said list was transcribed in a book by the clerk of the superior court of said county, and said book placed in the office of said clerk with the names alphabetically arranged; and that said list has been properly revised by the jury commissioners, and that the commissioners are present in court and have properly certified that the list is correct, and that the list is correct and contains all the names contained in the grand-jury box and traverse j ury box. ”*
The court, after hearing the evidence of the clerk and four of the six jury commissioners, the other two being dead, directed the jury list to be completed by having the same certified and signed, which being done, the following proceedings were had, viz.:
"It appearing to the court that James Tobin, Charles S. Bohlor, Chas. H. Sibley and Walter A. Clark, four of six jury commissioners who revised the list of grand and traverse jurors at the time of the last revision prescribed by law, are here in court, the two other jury commissioners, Chas. Spaeth and Joshua It. Evans, having, since the date of said revision, departed this life, and that said surviving commissioners are ready to certify that the list made out at said revision and now presented to them, contains all the names placed in the grand and the traverse jury boxes respectively at said last revision. And the clerk of this court, who is ex officio clerk of said board of jury commisioners, is also ready to certify to said list, and that the names of the grand-jurors mentioned in the third plea in*560 abatement are in the jury box by them revised and on the list made out. by them at said revision.
“It is ordered that said commissioners and said clerk be allowed to certify said list nunc pro tunc."
The court having overruled the plea in abatement by sustaining the demurrer thereto, and having passed the order allowing said list to be certified nunc pro tunc, the defendant made the following motion, viz.:
“ The defendant having filed a special plea in abatement on the grounds therein set forth, the court having announced its decision sustaining said demurrer to said plea, to which the defendant desires to except and take to the Supreme Court upon writ of error, to review said decision sustaining said demurrer to said special plea, counsel for defendant come now upon 'the rendering of said decision and move the court to stay the further progress of the case until they, for said defendant, can prepare and present a bill of exceptions and have the same heard and passed upon in the Supreme Court of the state.”
Which motion the court overruled. Whereupon the defendant filed a bill of exceptions pendente lite, which was allowed and certified according to law, excepting to said rulings and orders of the court upon the following grounds:
(1.) The court erred in overruling the demurrer of defendant filed in said case.
(2.) The court erred in sustaining the demurrer of the state to the pleas in abatement.
(3.) The court erred in allowing the jury commissioners and clerk to testify, and in permitting them to certify to the list nunc pro tunc.
(4.) The court erred in overruling the motion of defendant to suspend said case until a bill of exceptions to his decision sustaining the demurrer to the pleas in abatement could be prepared, presented and heard in the Supreme Court of the state.
The court overruled the motion made for a new trial, upon the following grounds :
(1) to (3.) Because the verdict is contrary-to the law and the evidence.
(1.) Because the court overruled the demurrer, filed by defendant in said case, on each and every ground théreof.
(2.) Because the court sustained the state’s demurrer to the pleas in abatement, filed by defendant in said case, and ordered said pleas to be stricken.
(3.) Because the court allowed four of the sis jury commissioners, two of said commissioners being dead, and the clerk of the court to certify to the .list of grand-jurors, nunepro tunc., the said clerk and jury commissioners having been sworn and examined in open court, as will fully ■ appear by the brief of evidence filed in said case with this motion.
(4.) Because the court, after sustaining the demurrer to the special pleas in abatement, overruled a motion, submitted in writing by defendant’s counsel, to stay the further progress of the case until counsel could prepare and present a bill of exceptions arid have the same heard and passed upon in the Supreme Court.
(5.) Because the court admitted in evidence, over the objection of the defendant, an act to incorporate the Enterprise Manufacturing Company in the state of Georgia, approved February 14,1873 ; the ground of objection being that the act of incorporation named a different company from that named in the indictment, in indictment the company being called The Enterprise Manufacturing Company, and in the act of incorporation Enterprise Manufacturing Company.
(6.) Because the court overruled the motion of defendant, made before the introduction of any evidence, that the state be required to elect on which item or offense in the indictment it would proceed.
(7.) Because the court admitted evidence of “ drops ” of other sums than that laid in the indictment, and at periods subsequent to the time covered by the said indictment, the same having been objected to by defendant, on the grounds
(8.) Because the court charged the jury at the request of counsel for the state as follows: “ Again I charge you in relaüon to evidence of good character of defendant, that its office is to assist the jury in reaching a conclusion in cases where doubt may exist as to whether the defendant is guiltv or not guilty of the act charged. If the jury be satisfied by proof that the crime was committed by the defendant, of course his previous good character can in nowise excuse him from the penalty of his crime. Crime, like everything else, must have its beginning. Every accused must; at some time, have been free from guilt. Hence, you are not to conclude, that in a case when the crime has been satisfactorily proven, that because the defendant previously enjoyed a good character, he is therefore not guilty of the offense proven.”
(9.) Because the court charged the jury as follows: il Again, as to the taking, it is not necessary for the state to prove to you that the whole amount charged in the indictment was taken. If any part of the sum charged is proven, that is sufficient.”
(10.) Because the court refused to charge the jury as follows: “Before the jury can find the defendant guilty, they must find him to be guilty as charged, and if the indictment charges that the alleged offense was committed by receiving and depositing the money, then the state must prove that the defendant, as a part of the offense, did receive and deposit the money as alleged, and if the evidence fails to prove these allegations, the state has failed to make out its case, and you should find the defendant not guilty.”
(ll.i Because the court refused to charge the jury as follows: “ The indictment charges the defendant with the offense of embezzling money. If the evidence should
(12.) Because the court refused to charge as follows: “Embezzlement imports the reception of the property mentioned in the Code, §4421, belonging to a corporation-by an officer thereof, who receives it by virtue of his office- and fraudulently appropriates it before it reaches the possession of the corporation. After money has got into the possession of the corporation, and while in its possession, it may be stolen, but cannot be embezzled. Money would be in the possession of the comp'any if it was so placed or’ deposited that, in case of Jackson’s death or resignation, it would at once have been under the control of his successor.”
(13.) Because the court refused to charge as follows: “If the jury find from the evidence that the money alleged to have been embezzled was in the possession of the company, and while thus in the company’s possession and under its control, the defendant took the property and used it, he could not commit the offense of embezzlement, for after it was in the company’s possession, it might be stolen, but not embezzled.”
(14.) Because the court charged’ as follows : “ If you find from the evidence that the defendant did, while president of the Enterprise Manufacturing Company, take the money entrusted to him, by virtue of his office, belonging to the company and fraudulently converted it to his own use, and then concealed the taking and misappropriation of the funds from the company as charged in the indictment, he is guilty of the offense charged and you ought to' so find.” •
(15.) Because the court charged as follows : “ Again, if you find from the evidence that it was the duty of the defendant to make financial statements to the board of directors of the true condition of the company, and he made those statements, concealing therein the fact of his use of
(16.) Because the court allowed to be sent to the jury-room the following books and papers : Cash book B. and C. of Enterprise Manufacturing Company, statement book of said company, the checks set out in the indictment, with stub-books, statement to Woodward, Baldwin & Co. and Latham, Alexander & Co., and the book of minutes of said Enterprise Manufacturing Company,—there being entries on said cash and statement books and stub-books and minutes not offered in evidence.
The jury having sent for the books and papers, the court sent them by the sheriff, with instructions that only such parts as had been introduced in evidence were to be inspected by the jury.
As the questions made by the demurrer to the indictment are repeated in the motion for a new trial, we will defer any notice of them until we come to that motion, and address ourselves at once to the special pleas in abatement.
We shall now proceed to examine such of the grounds of the motion for a new trial as are disconnected with the points which the demurrer to the indictment raises and as (do not) relate to matters already determined in disposing of the pleas in abatement.
Surely there is, under the laws of Georgia, such a crime or offense as embezzlement, or else the section of the Code on which this indictment is founded is without meaning, and numerous decisions of this court amount to nothing. If this offense exists under our laws, and the facts charged in the indictment do not constitute it, then it would be difficult to conceive what facts would make a case of embezzlement. To specify particularly what money was received and embezzled would be impossible, and such a requirement would give impunity to the crime. No defaulting agent with the least shrewdness could ever be brought to trial or condemned, under these hard conditions, to punishment. Evidence sufficient to convict could not be obtained, and the law would be a dead letter in the statute book. The material allegations in the pleadings are direct and positive. We do not think the objection that they are in the alternative well founded, and are unable to see that they are bad on account of repugnancy, or that they are
There is but one point remaining to be considered, and that is, that the indictment in a single count- joins more than one offense committed at different times and more than one kind of property alleged to have been embezzled at such times. It is insisted in argument that this single count contains no less than three hundred and twenty-one distinct felonies, for each of which the defendant would be liable to indictment; but such is not our apprehension of its meaning and purpose. In reply to a similar objection, the Supreme Court of Ohio, in Brown’s case (18 Ohio state, 497, 512,573), say, “ Nothing is better settled than the rule that a general verdict upon several counts will be sustained where either count is good. We perceive no reason why this rule is not equally applicable to that part of the verdict finding the amount of money embezzled, as to that part of it which finds the general guilt of the defendant. Both are charged, and both must be found, to enable the court to pronounce the proper penalty. Now each count of the indictment charges Brown with participating in the embezzlement of $20,036. The jury have found him guilty on all four of the counts. In theory, the indictment charged Brown with four several embezzlements, and the jury thus found him guilty of embezzling four times that amount. If this were true in fact, the court would inflict four several punishments. But it is only a fiction, and the several counts are only so many forms of charging a single offense. Brown cannot claim the benefit of the fiction without submitting to its burden. For the purposes of this question, then, the indictment is to be regarded as charging a single
So in this case there had been many wrongful and fraudulent conversions of the money of this company by its president, extending through several years, and when he began to apprehend detection and exposure, in order to baffle it, resort was had to the alteration and falsification of the books, in order the more effectually to secrete and conceal this huge defalcation. Though this series of misappropriations may have commenced with a purpose to use the money and to restore it to the company, and the defendant may, for a time, have hoped that he would be able to carry out this intention, yet when he found this impossible, he resorted to what he conceived the most effectual
Judgment affirmed.
The guotation beginning with “ That admitting” eta., formed part of a demurrer and answer filed by counsel for the state to the plea in abatement. fRep.)