53 S.E.2d 388 | Ga. Ct. App. | 1949
In the trial of one accused of larceny after trust, the evidence, to warrant a conviction, must prove the trust as laid. The conversion of property which was temporarily loaned to another for his own use, and not for the use or benefit of the owner or some other person, is not a breach of such an entrustment as will support a conviction of larceny after trust.
The defendant put in evidence the testimony of Charlie Patterson, who testified substantially that he was present when the prosecutor Hammond sold the truck in question to the defendant for $1000, on credit. The defendant then made a statement as follows: "I was living on lawyer Lang's place cutting timber for Cliff King, and Mr. Hammond came over after me. He was cutting this windmill, that oak stuff down in the pasture. He kept on until I went down there and I had a jeep then. I had bought it from Cliff King. Well, he wanted me to move *225 over there to Scottsville, and I moved over there in one of his brother's houses, and stayed over there and drove my jeep backwards and forwards and hauled his men in the jeep, some of them back and forth to work as long as I kept it. And he wanted to sell me the truck, and that is when I bought the truck. While I lived over there I hauled one set, one bit set of his logs and the next set, I cut it and we logged it, and when we went to settle up I had $50 coming on this set, and he took the $50 on what I owed him and put it on the books, the ones I told him to bring in, and he knows that he put it on the books. I was standing right there when he did it. I went on up here then, and I had bought the sawmill from him and moved it up yonder to cut some timber. And I was going to sell him the lumber and I went down there for a pay day. I went down there and he wasn't there. Mr. Hammond was there, and I never got no pay day, and I told him I would have to pay my men. I went back to my brother's and came on back and the next morning I came up here to Mr. Morgan's and he sold the timber for $40 a thousand, and he wanted to give me $35 and me deliver it. And I sold it at $40 up there, and when he did that and he came up there then and he stood down there and he never did tell me to bring the mill or nothing home; he sure enough never told me to bring not one thing home. He sold it to me fair and square and the books, if he would bring in the books, he knows just what I am telling you right now. And that is all I have got to say about it."
After this statement, the prosecutor Hammond was recalled and testified: "I heard the defendant's statement, and I also heard Mr. Patterson's testimony. I positively did not ever sell this 1941 Chevrolet 1 1/2-ton truck to Mr. Silvers. As to whether or not anything was ever said about him buying it from me or me selling it to him, well, he mentioned he wanted to buy it a time or two, but I told him I didn't want to sell it, but I would lethim use it. I know Charlie Patterson. As to whether or not he ever worked for me, well, he worked for me two or three days. He worked for Mr. Silvers a pretty good while. As to whether or not Mr. Patterson was present at any time when I had *226
a conversation with Mr. Silvers or he had one with me, when Silvers wanted to buy the truck, well, he wasn't, and he wasn't even around the day that I told him, I had the truck in Rome putting a new motor in it, and that was the day I told him thathe could use it when I got the truck out of the shop, but Patterson wasn't even around. I did not sell Mr. Silvers a sawmill. As to whether or not I ever got my sawmill back, well, I got the sawmill back. He sold the tractor when he left. Yes, the tractor was a part of the sawmill, the power unit, you pull the sawmill with this tractor. I did not ever sell him the sawmill with the tractor as part of it. I got it back. I got the sawmill up there where he sawed that lumber. He had sold the tractor to Mr. McAfee, and Mr. McAfee let me have the tractor back. I never got my truck back and never did find it. I don't know where it is today." (Italics ours).
The indictment was drawn under the Code, § 26-2809, which reads in part: "Any person who has been intrusted by another with money, note, bill of exchange, bond, check, draft, order for the payment of money, cotton, or other produce, or any other article or thing of value, for the purpose of applying the same for the use or benefit of the owner or person delivering it, who shall fraudulently convert the same to his own use, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than five years." While there was no demurrer to the indictment, it will be noted that it is nowhere alleged therein that the truck in question was entrusted to the defendant for the use and benefit of the owner Hammond, in accordance with the provisions of law in that statute. The indictment alleges that the truck was entrusted by the owner to the defendant for the purpose of "hauling lumber." The indictment nowhere alleges for whom the lumber was to be hauled. The State's evidence shows that the truck was loaned to the defendant to be used by the defendant for himself "to cut some timber." The evidence fails to show that the truck was used to haul lumber. The evidence shows that it was used for cutting timber and not for hauling lumber. Therefore we think that the verdict can not stand for *227
two reasons: In the first place, the evidence is at variance with the allegations of the indictment. In McNish v. State,
The other assignments of error are without merit.
Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.