Bridges v. State , 103 Ga. 21 ( 1897 )

Simmons, C. J.

Bridges was indicted for the offense of embezzlement. Before his arraignment he filed a general demurrer to the indictment and several special demurrers which will be found in the official report. ' These demurrers were overruled by the court, and upon the trial Bridges was convicted. He made a motion for a new trial, which was overruled. He excepted both to the overruling of his demurrers and to the refusal of a new trial.

1. The demurrers were, in substance, that the indictment was insufficient in law; that it did not allege that the crime was committed in the County of Floyd; that there was no day, month or year alleged in which the crime was committed; and that it did not set forth the time or place of the commission of the alleged crime. These were the grounds mainly relied upon in the argument here. We have carefully considered the indictment and the demurrers, and have come to the conclusion that the court did not err in overruling the latter. A casual reading of the indictment will show that it does allege that the crime was committed in the County of Floyd. The indictment commences with the words “Georgia, Floyd County,” and after the formal parts it alleges “ for that the said Bridges, in said county,” etc. This is sufficient, in our opinion, to show that the offense was alleged to have been committed in Floyd county.

Counsel for plaintiff in error laid great stress, in the argument here, upon that part of the demurrer which is based upon the ground that the indictment set forth no day, month or year upon which the crime was alleged to have been committed; that there being no certain day set forth and it being alleged only that the offense was committed between January 1,1894, and March 21,1895, the indictment was bad and should have been quashed on demurrer. The weight of authority seems to be that a certain day must be alleged in an indictment and that an indictment which does not so allege is bad, though there are respectable authorities holding to the contrary. It is sufficient for us in the present case to say that the demurrer on this point was not well taken, because the indictment does allege a day certain on Avhich the crime was committed. .It reads: “for that the said W. M. Bridges, in said county, on the first day of January, one thousand eight hundred and ninety-four, and on divers other days since that date, being then and there county school commissioner for the County of Floyd, having possession, custody and control of the funds set apart, apportioned and appropriated by law as a public-school fund, for the use and benefit of the public schools of the County of Floyd, . . did, at

divers times between January the first, one thousand eight hundred and ninety-four, and March the twenty-first, one thousand eight hundred and ninety-six, and in divers sums, embezzle, steal, secrete,” etc. Here is a day certain, January 1,1894. It is true that the indictment further alleges that the embezzlement took place between this day and March 21, 1896, but this does not render it bad. These words, “ at divers times,” might be rejected as surplusage, as was ruled by this court in the case of Cook v. State, 11 Ga. 53. A day certain having been alleged, the State could prove that the offense was committed at any time within the statute of limitations up to the finding of the indictment.

Exception is also taken to the following allegation in the indictment: “and did then and there, at divers times, and in divers sums, convert the said five thousand four hundred, and seventy-five and 15-100 ($5,475 and 15-100) dollars, to his own private use, by mutilating and making false entries upon the books, checks, returned checks, receipts, teachers’ reports, certificates, vouchers, and other papers connected with and appertaining to said office of county school commissioner of Floyd County, to conceal said embezzlement of said money.” It was argued that the indictment charged the conversion of the money by the mutilation, false entries, etc., and that inasmuch as the offense of embezzlement could not have been committed in this manner, there was no crime charged. The sentence in question is undoubtedly a bungling one, and is an inapt way of setting out the manner of the commission of the crime; but construing the whole indictment together, we think it was meant to allege that Bridges converted the money to his own use, and undertook, by mutilating the books, etc., and by making false entries upon them, to conceal the embezzlement. There is a great deal of redundancy and useless verbosity in the indictment ; but taking it as a whole, we think it sufficiently accurate in its averments to withstand the demurrers which were filed by the accused.

2. The court having overruled the demurrers, the trial proceeded. It appears from the record that the trial was had at the second week of the term. The court, in the week previous to this, had been engaged in the trial of civil cases; for the trial of these cases a jury of twenty-four had been impaneled; and at the end of the week the judge ordered these jurors to return on Monday of the second week. On that day the case against Bridges was called. The court impaneled a new jury of twenty-four; and in making up a panel of forty-eight, directed the clerk to place upon the panel the names of those jurors who had served during the previous week. Five of these latter having been excused, the other nineteen were placed T>y the clerk upon the panel. When the completed panel was put upon the accused, he challenged the array on the ground that “said array of jurors contains the names of 19 jurors who have not been drawn, summoned and impaneled as required by law; for that said jurors were in attendance as jurors in this court during the week beginning July 19, 1897, and have been selected out of the jurors who did jury-duty in this court last week, the selection having been made as follows: At the conclusion of the business of the court, on July 24, 1897, the regular panels of jurors then serving were called, and the court excused all of said jurors except the number aforesaid, the names of the selected jurors being as follows, . . and the jurors excused by the court being, . . ' ; and the defendant says that, for the reason aforesaid, said panel of jurors is illegal and he should not be required to select a jury from said panel.” The trial judge overruled the challenge to the array, and the panel thus made up was put upon, the accused. This was clearly and unmistakably error. Under section 858 of the Penal Code of this State, there are but two ways provided for summoning tales jurors for the trial'of felonies. It declares that “In making up said panel of forty-eight jurors, or successive panels of any number, the presiding judge may draw the ■tales jurors from the jury-boxes of the county and order the sheriff to summon them, or he may order the sheriff to summon tales jurors from among persons qualified by law to serve as jurors.” The record discloses that neither of these methods ■was pursued by the judge in summoning tales jurors to try this case, but that he, instead of following the statute, selected and summoned the jurors himself. It is true that they had been regularly summoned as jurors to try civil cases for the preceding week and had served, but this, in our opinion, does not make them legal jurors to try a felony, where they had not been selected as tales jurors in the manner pointed out by law. It was argued that, inasmuch as they had been regularly drawn and summoned and no objection was made to the individual jurors, the accused was not hurt in his defense and had no right to complain. This may all be true, yet the form and mode prescribed by law was not followed. The accused was entitled to have this mode pursued and a legal panel put upon him from which to select' his triors. In discussing a question similar to this, in Cochran v. State, 62 Ga. 731, Bleckley, J., said: “Those who ¿re impatient with the forms of law ought to. reflect that it is through form that all organization is reached. Matter without form is chaos; power without form is anarchy. The State, were it to disregard forms, would not be a government, but a mob. Its action would not be administration, but violence. The public authority has a formal embodiment in 'the State, and when -it “moves, it moves as it has said by its laws it will move. It proceeds orderly, and according to pre.established regulations. The State, though sovereign, can not .act upon the citizen in a different manner from that which the laws have ordained. . . Courts ■ are bound by the law no 'less than the prisoner at the bar. The statute which requires each panel to be put upon the prisoner is imperative, mandatory. No court has a right to disregard it.” In the year 1846 it was the law of this State, that when from challenge or otherwise there should not be a sufficient number of jurors to determine causes, it should'become the duty of the sheriff to summon as talesmen bystanders or others, qualified-by law, to complete the panel. In the trial of Boon' for murder, the judge did not direct the sheriff to summon talesmen from the bystanders or others, but opened the grand-jury box, drew tales-men therefrom, and directed the sheriff to summon the persons .whose names had been thus drawn. They were put upon the accused, the array was challenged, and the challenge was overruled. This court (1 Kelly, 631) held that it was an illegal jury, and that the court erred in not sustaining the challenge. See in that case the views of Lumpkin, J., of the necessity of following the forms of law in the trial of persons accused of felonies.

3. In the trial of the case the State proved the receipt by the accused of a certain amount of money, that it was a fund belonging to the county, and that the accused had failed to account for a portion of the fund. It then offered in evidence certain receipts, certificates, promissory notes, signed by the accused, for the purpose of showing that he was financially embarrassed during and at the time of the alleged embezzlement, that he was pressed for money and in straitened circumstances, and that he had resorted to devious methods to raise money. In the trial of cases of embezzlement, we think that any evidence which tends to show these things is competent and admissible. That a man is financially embarrassed, that he is in straitened circumstances, and that he owes money, tend in some degree to show a motive for the embezzlement. We have read these receipts and the testimony concerning them, and think they are admissible for the purpose offered. At the same time we are inclined to think that some of them, those referred to in the argument as the McWilliams and Hargrove certificates, are, for that purpose, of but little probative value. If, however, the jury can draw any fair and legal inference from them, we are clear that they are admissible. Bulloch v. State, 10 Ga. 47; United States v. Camp, 2 Idaho, 215; 10 Pac. Rep. 226; 6 Am. & Eng. Enc. Law, 503; 2 Bishop’s New Crim. Proc. § 327; 1 Wharton’s Crim. Law, §§ 1030, 1062 a.

4. The court charged the jury that the ownership of the fund alleged to have been embezzled was'properly laid in the County of Floyd, and that, under the law, the county school commissioner of that county was the"proper officer to receive from the State the entire sum of money appropriated and apportioned by the State for school purposes to the County of Floyd. Exception is taken to this portion of the charge. By an act approved August 11, 1881 (Acts 1881, p.-421), a public-school system was ■established for the City of Rome, independent of the county school system. Under its provisions, that portion of the school fund which belonged to the City of Rome was paid by the State .authorities to the county school commissioner who was in turn required and authorized to pay it to the city authorities. The general act approved October 27, 1887 (Acts 1887, p, 68), contains no provisions wliich would authorize the payment by the State authorities directly to the City of Rome her portion of ■the school fund, but the act. approved December 13, 1894, ■codified as section 1402 et seq. of the Political Code, does provide expressly for such direct payment. As to this matter, the terms of the act (Pol. Code, § 1406) apply to the schools of the County of Floyd and the City of Rome, and the school funds belonging to the latter pass directly into the hands of the proper city authorities. The county school commissioner is not .authorized, in his official capacity, to receive or disburse this portion of the funds; and if he does receive any part of it, he ■does so as an individual and not as a county officer. An indictment which alleges that the acchsed had, as county school ■commissioner, embezzled money belonging to the county, is not supported by evidence that the money misappropriated was the property of a city within the county. The indictment in the present case was, therefore, not supported by evidence that Bridges had received and appropriated to his own use all or a part of that portion of the school fund which belonged to the City of Rome and which was subject to the provisions of the act of 1894. That act, while passed prior to the time of the finding of the indictment, was subsequent to the day named therein as the time of the embezzlement. We think, therefore, that as to funds belonging to the schools of the City of Rome which may have come into the hands of the accused prior to the time when the act went into effect, the ownership was well laid in the County of Floyd.

5. Exception was taken to the admission in evidence of a receipt, signed by defendant and bearing date October 1, 1894, for $2,800, poll-tax for the year 1893. The date of this receipt is prior to that of the indictment and subsequent to that of the alleged embezzlements. It was prima facie evidence that, at the time of its date, the accused received the amount specified in the receipt, which was a portion of the amount of the school fund set apart for the County of Floyd. It was therefore admissible. Like other receipts it was subject to parol explanation ; and if the money had been in fact received and fully accounted for prior to the date on which the embezzlement is alleged to have been committed, these facts could have been shown by the accused upon the trial. Such explanation could not be made until the receipt had been put in evidence, and the receipt, unexplained, was admissible and was prima facie evidence of what it stated.

6. Other than as above ruled, we think that there was no-substantial error committed upon the trial.

Judgment reversed.

All the Justices concurring.