82 Ga. App. 273 | Ga. Ct. App. | 1950
Lead Opinion
1. “Embezzlement is an intentional and fraudulent appropriation of the goods of another by a person intrusted with the property of the same. In the common-law definition of larceny, we must remember, there are two gaps through which, in the expansion of business, many criminals escaped. The first of these gaps is caused by the position that to maintain larceny it is necessary that the stolen goods should have been at some time in the prosecutor’s possession. The second results from the assumption that when possession of goods is acquired bona fide by a bailee, no subsequent fraudulent conversion (unless there be breaking of bulk or some other rupture of the conditions of bailment) can be larceny while the bailment lasts. To cure these defects were passed the embezzlement statutes of England and of most of the United States. These statutes were intended simply to make penal two phases of theft not previously penal. If a servant (and this is the first of the two) steal his master’s goods before they have come into his master's possession, this is to be indictable as embezzlement. And the second is that it shall be also embezzlement for a trustee or bailee to fraudulently convert to his own use his master’s goods he may have bona fide received. Now, as
2. Upon the hearing of the motion for a new trial the State made a counter-showing on special ground 4, based upon newly discovered evidence, so that a conflict arose as to the material facts upon which the ground is based and a reviewing court will not, except in a case of manifest abuse of discretion reverse the judgment of the trial court in such a case. The material part of the ne"wly discovered evidence sought to show that subsequently to the trial here for embezzlement, the City of Warner Robbins had docketed and dismissed the cases against the persons referred to in counts 5 and 6, who had deposited cash bonds with the chief of police and whatever special property or ownership the city might have had in the cash bonds, it no longer existed. The question, as to whether the depositors of the money put up as cash bonds were entitled to recover the money that the defendant had wrongfully and fraudulently converted to his own use, for the reason that the city had, since the trial of this defendant, had those cases docketed and dismissed, was not before the trial court in this case; and the rights of the persons who made the cash bonds, as against the City of Warner Robbins, are not before us nor are they or either of them parties in this case. This is the case of Scarboro v. State, and we have expressly ruled that neither the rights of the depositors of the cash bonds nor of the City of Warner Robbins are affected by the trial of the instant case. We have already said that neither the depositors nor the City is estopped; that no one but the defendant himself is estopped. In the language of the trial judge: “there was no contention that he [the defendant] was still holding it [the cash] for the city or for any one charged with an offense against the city. There was a sharp issue upon the trial only on the question as to whether this money had been actually paid to the city, Mr. Scarboro con
3. In special ground 5 error is assigned upon the following portion of the court’s charge to the jury: “Now, gentlemen, all of the stated elements, that is those elements of the alleged offenses charged in this special presentment must be proven beyond a reasonable doubt by the State, and to complete the alleged offense charged in each count in this indictment, it must also be proven beyond a reasonable doubt that this defendant made a wrongful conversion—I will state it this way; that this defendant, while the public officer as described in this indictment, did in this count as alleged in this indictment, make a fraudulent conversion of the money, checks or vouchers described in each of the counts in this special presentment; (I will withdraw the word ‘indictment,’ gentlemen and you will consider that I used the words special presentment instead) and that this conversion, if any, that is the wrongful and fraudulent conversion, if -any, was done with the intent to steal the same.” The defendant contends that this portion of the charge is error for the following reason: “At no time did the court charge the jury substantially as follows: The facts necessary to show misappropriation or conversion can only be inferentially shown. A fraudulent appropriation is to be inferred from facts. A public officer cannot be legally convicted of the offense of embezzlement by showing a mere refusal or neglect to pay over funds which came to his hands. In addition thereto there must be some evidence of other things from which it may clearly be inferable that the neglect to turn over the funds was either in contemplation of a misappropriation or was a consequence of misappropriation. Proof that the officer falsified his accounts, that he was guilty of evasion in explaining his default, that he fled, or other similar acts indicating guilt sufficiently makes a case to put the defendant on explanation or, if not satisfactorily explained, a conviction would be authorized. But without some similar evidence neither the misappropriation nor the guilty intent is sufficiently shown.” The whole trial was predicated up
For the foregoing reasons the court did not' err in refusing to strike the State’s counter-showing as to ground 4 of the motion for a new trial, based upon newly discovered evidence, or in overruling the motion for a new trial.
Judgment affirmed.
Rehearing
On Motion for Rehearing.
As to ground 2 of the motion for rehearing the following rule is controlling and adverse to the movant: “ ‘It has always been allowable, as well in criminal as in civil cases, to introduce evidence of other acts and doings of the party of a kindred character, in order to illustrate his intent or motive in the particular act directly in judgment.’ . . Tf evidence is admissible on behalf of the defendant for any purpose, though its effect on plaintiff’s case may be serious, this will not make its admission erroneous as irrelevant.’ ” Bates v. State, 18 Ga. App. 718 (90 S. E. 481). See also Farmer v. State, 100 Ga. 41 (28 S. E. 26). This and all other matters in the motion and supplemental motion for rehearing having been considered, the motion for rehearing is
Denied.