McNish v. StateMcNish v. State
- Reporters:
- , ,
- Before:
- Bleckley
By disрosing of the general grounds in the motion for a new trial, all the speciаl grounds, in so far as they are verified by the presiding judge, will be ruled incidentally. They will need no separate discussion.
*500The indictment being for larceny after а trust had been delegated, in order to convict the accused, it was nеcessary to prove the creation of the trust described in the indictment, and a fraudulent breach of it in the manner alleged. To chai’ge onе trust and prove another would not suffice. Carter v. The State, 53 Ga. 326; McCrary v. The State, 81 Ga. 334. The indictment alleges that McNish was entrusted by Raymond Judge with a certain check drawn by Judge on a bank, and made payable to the order of Wm. E. Guerard, agent, or bearer, “for the purpose of applying the same for the use and benefit of said Raymond Judge,” etc. By the evidence it appears either directly or by fair infеrence that Guerard, the payee of. the check, was a member of the firm of James B. West & Co., a partnership which transacted a wharfage business for itself, and represented the Merchants’ and Miners’ Transportation Company in the collection of freights; that McNish was a clerk of James B. West & Co., and was in the habit, in the usual course of business, of delivering bills of lading to customers and receiving checks from them in prepayment of bills of freight and wharfage; that one of these customers was Raymond Judge, from whom MсNish, acting in conformity to the custom, received the check described in the bill of indictment, the amount of the check representing a bill for $330.83, of whiсh bill $321.62 was for freight accruing to the Merchants’ and Miners’ Transportation Comрany, and $9.21 was for wharfage due to Jas. B. West & Co. It is manifest. that Judge dealt with McNish, not as his own bailee, servant or agent, but as the clerk and representative of Jas. B. West & Co. His object was, not to create a trust, but to pay a debt. He did not rely upon McNish to apply the check, but applied it himself. What he expected McNish to do was to deliver the check to the payee or to Jas. B. West & Co., or to col*501lect it for their use and the use of the transрortation company. When McNish did collect it, if not before, the debt wаs paid, and he held the money, not for the use of Judge, but for the use of Jas. 33. Wеst & Co., his employers. He was accountable to them. At their suit he could have been compelled to pay over the money, hut at the suit of. Judge no recovery could have been had against him, for the reason thаt the debt of Judge being paid, the bill collected was discharged. He nevеr for a moment held the money for the use of Judge or as his bailee. There was certainly a trust relation, but it was not between Judge and McNish, hut between MсNish and his employers. They entrusted him to make collections from customеrs in such cases, and to them he was accountable for the faithful exеcution of his trust. True the evidence shows that there was no express authоrity conferred upon him to collect this particular bill against Judge, but it doеs not appear that he was forbidden to collect it, and it is affirmatively shown that he dealt with Judge in this instance as he had in others, and according tо the usual course of business. These facts served to invest him with authority to represent his employers in this particular transaction, and to cast upоn him all the responsibilities,- civil and criminal, which attached to the exercise of such authority. We do not mean to suggest that he was ac-acсountable only to Jas. 33. West & Co. 33oubtless so long as he had not accounted to them, he would also be accountable to the transportation company to the extent of its interest in the ownership of the fund; hut the controlling fact is that he was not answerable to Raymond Judge, and that no trust between him and Judge was created.
The court erred in not granting a new trial.
Judgment reversed.