19 Ga. App. 32 | Ga. Ct. App. | 1916
McCoy was charged with the offense of larceny after trust, and the jury found him guilty. According to the testimony for the State, McCoy sought out the prosecutrix and told her that he was in the real estate business and was agent for the, sale of a piece of real estate, which he would sell her for $1,300— $300 cash and the balance in installments; that if she paid him the $300 cash he would send the money to the owner and get her a bond for title from the owner; and she paid him at different times, in separate amounts, the aggregate amount of $300, which he unlawfully and fraudulently converted to his own use. McCoy contended that if she paid him the money, her only right would be to sue him and get a judgment against him. He further contended
1. As the case was submitted to this court by brief, the assignments of error relied on in the brief will be disposed of seriatim. A general and special demurrer to the indictment was filed. The exception to the overruling of the general demurrer is abandoned, but the plaintiff in error insists upon the grounds set forth in the special demurrer. He contends that there are two sections of the Penal Code under which he could be prosecuted. In one the penalty is from two to seven years, in the other from one to five years. He insists that having specially demurred to the indictment, he had a right to know for which crime and under which section he was being prosecuted, and that the State should have been required to elect and state on which section the indictment was based. Under section 189 of the Penal Code, if any bailee with whom money is intrusted or deposited shall fraudulently convert it or any part of it to his own use, he is punishable for a term of not less than two years nor longer than seven years. Under section 192 of the Penal Code, if any person, being instrusted by another with any money “for the purpose of applying the same for the use or benefit of the person delivering it, shall fraudulently convert the same to his oivn use,” he is punishable for not less than one nor longer than five years. It is manifest that under § 192 it is necessary to allege in the indictment that the money intrusted was intrusted “for the purpose of applying the same for the rise or benefit of the owner or person delivering it,” while under § 189 such an allegation is unnecessary, it being there provided that if a “bailee with whom any money . . may be intrusted or deposited' shall fraudulently convert the same or any part thereof to his own use,” etc., he shall be punishable for not less than two nor longer than seven years. The indictment charged the accused with the offense of larceny after trust, “for that said accused, in the County of Fulton and State of Georgia, on the 1st day of August, 1915, with force and arms, having been intrusted by Nancy Wilson with three'hundred dollars ($300.00) in money of the value of three hundred dollars, and the property of the said Nancy Wilson, for the purpose of ap
3. It is contended that the venue of the crime was not shown upon the trial. The testimony of the prosecutrix on this point is as follows: “I paid him $385 in money, to pay on. the place at 96 Bawson street, Atlanta, and I paid him all the money in Fulton county, Georgia.” “Evidence authorizing a finding that the accused was in a particular county intrusted with money, and that he thereafter fraudulently converted the same to his own use, is sufficient to warrant a finding that the conversion took place in that county, when there is no evidence showing that he ever left the county, or tending to establish the fact that the conversion was made beyond its limits.” Keys v. State, 112 Ga. 392 (37 S. E. 762, 81 Am. St. R. 63); Bowen v. State, 16 Ga. App. 179 (84 S. E. 793).
3. In the brief of counsel it is contended that “the defendant was entitled to be convicted for a misdemeanor, and not a felony,” in that the evidence failed to disclose that more than $50 was taken at any one time; and that if he was guilty, the amount taken at each time did not exceed $50, and that in no instance, if he fraudulently converted the money, had he committed a felony. It appears, from the evidence, that the prosecutrix made an agreement with the defendant to purchase a certain piece of land, and that from time to time, in pursuance of the terms of the contract, she paid him certain installments, which he converted to his own use. The
4. Exceptions are taken to the instruction of the court that any offer on the part of the accused to pay back the money “would not affect the crime, if any;” that after the conversion, if there was r, conversion, a settlement of the case without authority of the court would be compounding a felony. The accused contended that under the law he had the right to pay back the money and stop the prosecution; that the greatest amount of money taken at any one time was $50, making the offense a misdemeanor; and that he had the right to settle a misdemeanor. If the evidence for the State is true, an attempt to pay back the money or any part thereof fraudulently converted on the part of the accused, after the conversion, would be an attempt to compound a felony; and the court did not err in instructing the jury to that effect.