50 Ga. 219 | Ga. | 1873
In the case of McCoy vs. The State, 15th Georgia, 205, this Court held, that, under section 36 of the Code of 1833, (of which section 4358 of Irwin’s, Code is but a transcript,) the crime of larceny after trust delegated was complete on a fraudulent conversion to the defendant’s own use of the thing entrusted. This indictment is only good under that construction of the section. It fails to allege any demand, or even any failure to pay; it goes solely on the fraudulent conversion. We do not think the evidence sustains the indictment. The use of the money by the defendant, as proven, does not at all justify the belief that it was his intent to commit any fraud. He was a factor for a commission, and a rule that the use of the money received by a factor for goods sold by him on commission, is, per se, a fraudulent conversion, would be to make criminals of nearly all the factors in the State. It is the usual course of business for a factor to mix the proceeds of his sales with his own funds, and to use them indiscriminately, and if he account with the principal, no harm is done. To make out a case of larceny from the mere use of the article, it must appear that the use was fraudulent; that it was used under such circumstances as to show an intent to deprive the factor of his property. There is nothing in this evidence to justify such a conclusion as to this defendant. He had an interest in the proceeds to the full amount of $100 00, and he had every reason to consider that his interest would increase by his future sales. Nor is there anything in the mode of the use to indicate that it was his intent at the time not to account fully with the principal. This failure to pay does not meet the charge. Had the indictment charged a disposition to the injury of the owner, and without his consent, and a failure to pay, the evidence would, perhaps, sustain it, unless, perhaps, the interference of the father, he being a minor, might excuse the failure. Rut this indictment goes on the fraudulent conversion solely, and, in order to make out the charge, that must be shown. We will not say this cannot, in any case, be made
Judgment reversed.
