7892 | Ga. Ct. App. | Feb 1, 1917
1. The indictment charged “the offense of larceny after trust delegated, for that” the accused, “after being intrusted by J. C. Sheppard with two bales of lint cotton, weighing about five hundred pounds each, then and there the property of said J. 0. Sheppard and of the value of sixty dollars each, for the purpose of selling same and paying the proceeds of said sale to said J. C. Sheppard, did fraudulently con vert, said two bales of cotton to his own use, to the injury and without the consent of the said J. C.
2. The remarks of the solicitor-general in his concluding argument to the jury, complained of in the only special ground of the motion for a new trial, were not of such harmful effect as to require that a mistrial be declared by the court. The prejudicial effect, if any, was sufficiently removed by the action of the court in directing the solicitor-general to desist from such references, and in ruling out the remarks complained of, and by the solicitor-general's withdrawal of the remarks and his apologies therefor to the court.
3. The indictment alleged a trust for the purpose therein set forth, and the proof showed a trust for an entirely different purpose. “The indictment being for larceny after a trust had been, delegated, in order to convict the accused it was necessary to prove the creation of the trust described in the indictment, and a fraudulent breach of.it in the manner alleged. To charge one trust and prove another would not suffice. Carter v. State, 53 Ga. 326; McCrary v. State, 81 Ga. 334 [6 S.E. 588" court="Ga." date_filed="1888-05-16" href="https://app.midpage.ai/document/mccrary-v-state-5563148?utm_source=webapp" opinion_id="5563148">6 S. E. 588].” McNish v. State, 88 Ga. 499, 500.(14 S.E. 865" court="Ga." date_filed="1892-01-11" href="https://app.midpage.ai/document/mcnish-v-state-5564478?utm_source=webapp" opinion_id="5564478">14 S. E. 865). The evidence failing to support the particular allegations made in the indictment, the conviction of the accused was unauthorized, and the court erred in overruling the motion for a new trial, based upon the general grounds.
Judgment reversed.