83 Ga. 166 | Ga. | 1889
Robson was indicted, tried and convicted for embezzlement committed whilst he was tax-collector of Washington county. The moneys embezzled were alleged to he taxes due by the tax-payers of that county to the
1. There was a demurrer to the indictment alleging that it failed to charge that the accused had the money in his possession, custody or control as tax-collector at the time of the imputed offence. We think the indictment did allege the equivalent of this, as it charged that the money belonged to the State of Georgia for the general State tax due from the tax-payers of the county of Washington to the State for the year 1886, which had been by said Robson, as tax-collector, collected from the tax-payers of the county.
2. Though we have examined the indictment and ruled it sufficient, the question has not been properly made by the record and hill of exceptions. The overruling of such a demurrer is not proper matter for a motion for a new trial. Griffin v. The Justices, 17 Ga. 96; DeBarry, etc. v. Austin, 76 Ga. 306; Rogers v. Rogers, 78 Ga. 688. The bill of exceptions, it is true, does except directly to the ruling of the court on the demurrer. But this comes too late, as time runs against such exception, not with reference to the date at which the new trial was denied, but with reference to the date of the trial, or at all events to the adjournment of the term of the court at which the trial took place. Daniel v. Tarver, 70 Ga. 203. Had exceptions
3. A continuance was moved for and denied. It seems that the accused in open court discharged certain of his witnesses from further attendance, and then applied for a continuance because one of these witnesses was absent. The court, knowing-judicially of what had transpired, refused to grant the continuance for that reason. It seems to us that there can be no doubt that the reason was sufficient. Moreover we are satisfied that if what was proposed to be proved by the witness was admissible evidence at all, it was so immaterial that the refusal might well have been put upon that ground.
4. The 44th rule of the superior court, code, p. 1351, requires that all grounds of a motion for continuance shall he urged and insisted upon at once, and declares that after a decision on one or more grounds, no others shall be heard by the court. In Brinkley v. The State, 54 Ga. 374, it was suggested that this rule might, in the discretion of the court, be made to yield so far as to prevent injustice by mistake, inadvertence, surprise, etc. We cannot hold that it was an abuse of discretion not to relax the rule so as to hear a second motion after the first had been determined adversely, the ground of the second being the absence of one of the prisoner’s counsel. It was not pretended that the absence was unknown when the first motion was made. The only excuse given was that it was left out by inadvertence or oversight. It was not stated that the absentee was the leading counsel. If he had been such, or if his presence had been deemed very material, it is altogether unlikely that this cause for continuance would have escaped attention in the first instance. Indeed it would
5. The panel of jurors having been exhausted without obtaining a full jury, the partial jury selected but not yet sworn were confined elsewhere than in the court-room, and whilst the bailiffs were abroad engaged in summoning another panel, the court proceeded to try another criminal cause. We think there was no error in this. The selected jurors took no part in the proceedings and were not even present. The case is wholly unlike that of Tribble v. Anderson, 63 Ga. 32, in which some of the jurors engaged on a pending trial were charged with another case.
6. During an interval while the trial was in progress, the court, with consent of the prisoner’s counsel, the prisoner himself not intimating any objection, dealt with some of the witnesses who had been summoned in behalf of the accused, for their failure to attend promptly in obedience to the process. They were proceeded against for contempt, and the court heard their excuses. This took place during a recess of the court and whilst the jury were not present. Under such circumstances it was surely no error, nor even any irregularity, to hear the excuses of the witnesses; and, so far as appears, this was all that was done.
7. Before the indictment was found, the comptroller-general had issued execution for the taxes due from the collector, and the sureties on the collector’s official bond had paid the executions in full; and, as indicated by
8. It is contended that the venue of the offence was not made sufficiently certain by the evidence; but we think otherwise. The accused was a public officer of the county of Washington. He collected the money in that county from the tax-payers thereof. His office was there; he resided theró; and it is not affirmatively shown that any of the money was elsewhere after he collected it. Smiley v. State, 66 Ga. 754. The venue may be established by circumstantial or direct evidence. Davis v. State, 82 Ga. 205. We think the venue was most amply proved by the evidence in this record.
9. When the verdict was brought into court the accused was at large on bond, and was voluntarily absent.
10. Touching the general merits of the case and the sufficiency of the evidence to warrant the verdict, we content ourselves with quoting from the opinion of the able and impartial judge who presided at the trial, and whose opinion in deciding adversely on the motion for a new trial, has come to us as a part of the record: He says; “I cannot say that the verdict is contrary to the evidence and law of the case. Neither does it appear to be against the weight of evidence. I cannot come to the conclusion that the jury was not justified in saying he was guilty beyond a reasonable doubt. The defendant made the square issue that the funds of the State in his hands as tax-collector were stolen, and not embezzled by him. Was this money stolen by Willie Corneal, or was it embezzled by the defendant ? That was the sharp, clean cut issue which the defendant made with the State. There was no middle ground, no allegation of extravagance or reckless expenditure, or innocent appropriation of the State’s money with intent to account for it at the proper time, and failure owing to misfortune or miscalculation. In reply to the proposition that the money was stolen, there was evidence that the defendant paid a note of his ówn with mouey taken from a pile in or on his desk where he was sitting at the receipt of customs, taking in the taxes of the people. The jury might infer that the defendant used the State’s money for this purpose. There was the evidence of several witnesses that the defend
Judgment affirmed.