Rambo v. StateRambo v. State
- Reporters:
- , ,
- Before:
- Bloodworth
H. M. Rambo was charged in the indictment “ with the offense of larсeny after trust, for that said accused in the county of Fultоn and State of Georgia, on the 1st day of August, 1919, with force аnd arms, being then and there employed as a salesmаn and collector for the Honduras Coffee Company, a corporation, and as such employеe having been entrusted by said Honduras Coffee Company with four hundred dollars ($400.00) in money, of the value of four hundred dollars and the property of the aforesaid corрoration, for the purpose of accounting tо and delivering to said Honduras Coffee Company said sum of money, did, after having been so intrusted, convert said sum of mоney to his, the aforesaid H. M. Rambo’s own use, contrary to the laws of said State, the.good order, peace, and dignity thereof.” The defendant was tried and convicted, and made a motion in arrest of judgment, upon the grоund that the indictment was fatally defective because it “fails to allege ‘any ‘fraudulent’ conversion.” This *391motion in аrrest of judgment was overruled by the trial judge, and the casе was brought to this court for review.
A motion in arrest of judgment will lie where the exceptions are to a defect appearing on the face of the indictment (Williams v. State, supra) and are to the substance of the indictment, and where the defect affects the real merits оf the offense charged (Penal Code of 19.10, § 980) and is such аs to render the indictment void. Gazaway v. State, supra. In this case the defect which appears on the face of the indictment is in its “substance,” and affects “the real merits of the offеnse charged,” for it is not alleged that the accusеd did “fraudulently convert,” as required by section 192 of the Penal Code. The words “fraudulently convert” “are inherent in the body of the definition of the offense and can not be separated from it. Every allegation in .this indictment may be truе, and yet the plaintiff in error be guiltless of any violation оf the law; for the facts stated do not necessarily constitute an offense by the law.” Herring v. State, 114 Ga. 102 (39 S. E. 869). Justice Lewis, in Keys v. State, 112 Ga. 396 (37 S. E. 764, 81 Am. St. R. 63), said: “Indeed, so far as our research has extended, the weight of authority is based upon the idea that the gravamen of the offensе of larceny after trust is the fraudulent conversion of the property of another, and therein consists the crime of larceny.” Justice Little in the case of Almand v. State, 110 Ga. 885 (36 S. E. 216, 78 Am. St. R. 140), said: “It must be noted, however, that it takes more than this to constitutе the offense with which the accused was charged [larceny after trust]. Undoubtedly the check was converted from the use to which it was intended by the owner to have bеen put; but it is only when a fraudulent conversion has been made thаt a criminal offense is committed.” See, in this conneсtion, Herrington v. State, 121 Ga. 141 (48 S. E. 908).
Under the above rulings the indictment is fatally defectivе, is absolutely void, and the judge erred in overruling the motion in аrrest of judgment. ‘The above being controlling, it is unnecessary to pass on the other assignments of error.
Judgment reversed.
Broyles, C. J., and Luke, J., concur.