*1 “с” The attack made subsection is that general nature. Chattooga scope applicable solely act is limited County. presented pleadings,
A
question not made in
pre-
too
аrgument
court,
before this
comes
late,
first time
Security
for determination.
Southern
sents
Loftin
Co.,
(3)
760); Rogers
Taintor,
E.
upon
petition
Every attack made
act
pass
unnecessary
abandoned
the defendant
act
abandoned. The
have been thus
upon
questions which
presented
attack
be unconstitutional
can not be
counsel in
court.
by argument
for the first time
concur.
All
Justices
revеrsed.
The State.
Scarboro
came to us on
Justice. This case
certiorari
Candler,
special
grand jury
County by
Appeals.
presentment,
Houston
A
containing
counts, charged
with em-
and aсcused L.
Scarboro
eleven
separate
stated
bezzlement. Each
count
times,
unlawfully embezzle, steal, secrete,
take
carry away
checks,
belonging
money,
certain
and vouchers
corporation
municipal
Georgia,
came
Warner
which
possession
demurred
into his
as its Chief
Police. The defendant
generally
specially
counts
to all of the counts of the
trial, the
and 11. All of the
were overruled. On
demurrers
jury acquitted
counts, except
After
him
all of
an order
effect
the trial
interposed
sustaining
the demurrers
counts
imposed.
As
to counts
and as
them no sentence was
5 and
punishment
jury having
imposed,
it, misdemeanor
recommended
a term
serve
of twelve months
was sentenced
computed
case,
consecutively.
in each
A motiоn for
works
trial,
amended,
after
was overruled and writ of error was sued
Appeals. That
out returnable to the Court of
court affirmed the con-
viction. Scarboro
only question presented
tо this court for decision
was sufficient
certiorari whether
the evidence
of Warner
had an interest
Robins
subject-matter of
alleged to
could be
have been embezzled which
city’s ownership
charged. Concerning
it, all that
the offense
briefly
support
this:
count Robert Crowder
shows
up”
public drunkenness
testified for the State
he was “locked
city jail
Robins;
of Warner
that a
required;
of that amount
that he made a cash
support
Gantt,
on March
1949. M.
presentment,
was made
testified that
of count 6 of the
January 23, 1949,
about
him in
bond;
*2
drunk;
that he saw his
on his own
that he was released
go
to
him;
pay
$10
nоt want
back
for
that he did
the accused
deposited
money
of
court;
the
not
what became
and that he did
know
testimony
appearance.
of the witness
Gantt
for his
for
wife,
witness also
оf his
as a
evidence
was corroborated
it
voluminous, in
fact
evidence in this
is
the State. The other
conflicts,
pages
not free from
of
record.
is
covers 137
received
jury
fully
it that
acсused
authorized to find
appearance of
bail,
each,
the.
deposits
for
of
in lieu of
two cash
Mayor’s
Court of
before the
and J.
Gantt
Robert Crowder
they
charge
drunkenness;
a
of
thаt
to answer
of Warner Robins
paid
appearance;
had not
over
and that
the accused
made no
conclusively appears from
money
deposited.
it also
Mayor’s
аny
on the
charge
entered
for
offense was
that no
prior
or J. M. Gantt
to the
against
Crowder
either Robert
docket
prior
special presentment
or
turn of the
any
proceeding
hаd
conviction,
of
character
of his
and that
date
forfeiting
of
cash
two
instituted
admittedly
bail. Held:
deposits
in lieu of
received
the accused
officer,
“Any
embezzlement,
Code, §
Defining
deсlares:
station,
any
department,
person employed
servant,
or other
any county, town, or
there-
government
or
of
of this State or
office
carry
secrete,
of,
embezzle, steal,
or
take and
shall
who
property
effects,
book,
or
away any money, paper,
or other
penitentiary
less
punished by imprisonment
for
and labor
years.”
years
than
nor more than seven
two
(Black’s
ed.,
species
larceny
Dictionary, 3d,
is a
of
Law
Embezzlement
offense,
p. 653),
prosecutions
former
for
as
those
latter, ownership
property
have
of
been stolеn
neces-
is a
sary
State,
§ 8.
also
averment. 29 C.J.S.
See
McKee
200 Ga.
(37
2d, 700),
an
cited.
and the authorities there
And since
necessary
allegation,
ownership
or
of
a
in an
is
averment
indictment
law,
еlementary principle
embezzlement,
an
of
proved
authority,
as
which needs no citation of
it must be
laid.
any
wrong-
However,
legal
property
it is well
interest in the
settled
fully converted,
title,
suрport an
although
than the absolute
will
less
interest,
legal
allegation
ownership.
an
of
But there must be
actual
expectation
Cyc.
To
same
not a mere
or
of interest.
claim
effеct,
State,
563;
State,
see Robinson v.
Wimbish
89 Ga.
(36
325); Henry
State,
R.
S. E.
provision, forfeiture of cash of law funds prevent such an interest from does not indictment for embezzlement. sustain an would Rehearing 27, 14, No. 17275. denied Novembder November Casey Bloodworth, J. W. D. Thigpen, B. Oliver, Calvin McCracken, plaintiff Harris, & Godfrey, Chance error. Solicitor-General, West, con- Garrett, William
Charles H. tra. Balkcom, Warden.
McBurnett January 20, was convicted Vester McBurnett Justice. Almand, murder, guilty Court, offensе Floyd Superior found of the was affirmed conviction electrocution. His was sentenced to death 598) 11, 1949, on October 55 S. E. this court sentence subsequently to set aside the refusal of the trial a nеw On June affirmed. 206 was July July 28, sentence, 1950. On of the fixed for execution date was corpus, sought release, writ of habeas his he Penitentiary. State of the Warden being warden that he was cited by eleсtrocution, June put with the sentence of in accordance to death plaintiff having that, provided been tried This sentence ap- mercy, recommendation his of murder without a convicted Floyd denied, request clemency having peal Sheriff of plaintiff di- County of the directed to deliver War- purpose of electrocuted rector corrections Penitentiary July 28, 1950. It was of the State den present, order of June the time of said involuntarily absent, he while he was said order was present, anyone to right nor did he authorize to be waive rights presence. constitutionаl were that his It was waive asserted provisions positive violated, article *4 in that said order violated the Georgia 1, paragraphs 2, 3, 4, 5 of Constitution of section (Code, 2-105), §§ the Fourteenth Amendmеnt and also violated 2-102— 1-815). (Code, § He further United States to the Constitution illegal fixing such restraint was because the order contended that his conformity void, in that said date of execution was sentence was provides judge, -provisions of Code electrocution, fixing carrying date for out a sentence days days nor than 10 more than 20 from the date set a time not “less general sustained of such order.” The demurrer the defendant was and the was remanded to the of the warden. Held'. judge fixing execution 1. The order of the trial new date