Hoyt v. State , 50 Ga. 313 ( 1873 )

Trippe, Judge.

1. It is not necessary to notice all the different points made in the demurrer to the indictment. What we do pass upon are sufficient to dispose of all practical questions in the case. The indictment is not demurrable as being vague and indefinite, in that it does not put the accused on notice of what he is called on to answer. It charges him with having received a certain amount of money to be applied for the use or benefit of the bailor, and that on a certain day he fraudulently converted a specific portion thereof to his own use, without the consent of the owner, and to his injury, etc.. These are almost the exact words of the statute, and that the indictment is not vague or uncertain, may be illustrated by one suggestion. Suppose, on the trial under such an indictment, the proof was, that the sum charged as being fraudulently converted, was not only not in fact used, as by the terms of the bailment it was to be used, for the benefit of the bailor, but, by the confession of the accused, was converted by him as charged, and that he, on account of such offense, was endeavoring to flee. Would not this proof sustain the charge, and would it not be competent evidence under the charge? Gould the accused complain that he was not put on notice of what he was charged with ? But, under an indictment making a general charge of fraudulent conversion, as stated, we do not think it competent for the prosecution to prove that the accused had reported to the bailor special payments as having been made to particular persons in the performance of his duty as bailee, and that such payments were not, in fact, made to the amounts so reported; or, that there were no such persons as those to whom the payments were reported to have been made. Each of such fraudulent acts would be a crime, and proof thereof would be sufficient to sustain a conviction, and the defendant should be put upon notice of such charge. Unless this be the rule, no bailee could ever have anything like a fair opportunity either to defend or explain. Take, for instance, such a case as this. A person invests another with a trust, giving him money to pay his debts, not specifying who the creditors are, or to expend the money for certain general purposes for the benefit of the bailor. The bailee proceeds to discharge his duty, and makes his report, showing a full discharge of what was in his hands. He is indicted generally as fraudulently coverting, on a certain day, the whole, or one-half the amount entrusted to him. He may have made and reported payments to fifty or one hundred persons. On the trial, two or three of those he reported as having received payments from him, are offered as witnesses to prove that he did not pay them the amounts reported; or it is proposed to prove that two or three of such reported persons are fictitious names, that the witnesses do not know such persons. No charge of fraudulent conversion has been made as to such payments, or as to there being no such persons. The defendant is suddenly confronted with the proposition of such proof, without notice or preparation for defense as to acts, each of which constitutes a crime, and proof of either being sufficient to sustain a conviction on an indictment founded thereon. He might, with proper notice be fully prepared to prove the identity and real existence of the persons, whom other witness are ready to swear they do not know, for fifty men may truly swear they do not know certain persons, and they do not believe they exist, whilst many others would satisfactorily prove that there were such. Surely the opportunity should be afforded a defendant to do this in such a case, by the charge being so framed as to give proper notice of the offense intended to be proved. Unless this were so, the greatest injustice might and would be often done.

If the State be aware of such acts, so as to be prepared to prove them on the trial, it would have the same knowledge and the same testimony so as to frame the indictment, that it may contain whatever is necessary to put the accused on notice of that with which he is charged, and of which he is to be convicted. Even in civil cases such a rule of pleading obtains. No trustee who has made his returns is liable to have them attacked, unless the notice is given in the proceedings against him. If he has omitted to make a proper charge against himself, a specific allegation must be made thereof, by way of surcharging, so as to hold him liable. If he has given himself a credit which is false, or to which he is not in law entitled, the proceedings against him must allege it by a charg& falsifying it. If this be the liberal rule in a civil case, there should be as equally a benign one in criminal procedure. The law has surely as high regard for the proper guards for the protection of life and liberty, as it does for the protection of property. Let it be noted, that the indictment in this case charges the receipt of various sums of money at different times during the year 1870 ; and that on the 11th May, 1872, the defendant fraudulently converted a large portion thereof to his own use, etc. The testimony offered and objected to was, that the defendant’s books showed payments to certain persons in 1870, and that there were no such persons. There were three of this class that were claimed to be proven not to exist. If it were a fact, in each case it was a crime proved, upon which a conviction could be founded. There wei’e then three distinct offenses, each one independent of the other, each sufficient upon which to rest indictment and conviction; and yet of neither was there any charge or notice until the testimony was offered. The same may be said of the testimony as to larger credits being given by the defendant to himself, than the amounts actually paid. That was sufficieut to show fraudulent conversion in each case, and to support indictments charging them, and convictions thereon. It might not be going too far to say that it is a good if not the true rule, that where a specific act is an offense under the penal Code, and that act is to be made by proof the ground on which a conviction is to be had as constituting the crime to be punished, that specific act should be charged in the indictment. It is not necessary that the indictment should allege or show the testimony which is to be used on the trial, but it should set forth sufficiently the act committed by the accused, which constitutes the offense charged, and for which act the conviction is sought.

If the affidavits offered by the defendant, in the motion for new trial, be true, and it does not appear but what they are true, they illustrate strongly the virtue of such a rule. The prosecution pretty strongly proved, as it appeared, that there were no such persons as three of those to whom defendant, by his books, had made payments. Such testimony must have weighed with great force on the minds of the jury. For if, in fact, there were not any such persons, the defendant must have stolen these amounts, or rather, embezzled it. The indictment contained no allegation of such acts, and it is to be presumed that the first notice defendant had that they would be raised against him, was after the trial commenced — indeed, as to the particular proof, from the mouths of the witnesses on the stand. He had no time to meet such proof, he may not have known where his witnesses were, or had no opportunity to procure them. With all this testimony, of such terrible import, before the jury, he was convicted. After the trial the affidavits of two of those very three persons, whose non-existence was thus proven, were obtained, showing not only they were veritable human beings, but had actually received payments from the defendant. It is true, the amounts specified in their affidavits as being paid them did not exactly correspond with defendant’s books. But the same may be said, as to that fact, as was remarked of the other witnesses, who stated that their amounts did not correspond. At least, the defendant should have had the opportunity to have had those witnesses examined, and by any proper means to refresh their memories as to the amounts, provided it could have been done.

2. The special plea in bar was properly overruled as such. The Act of October 14th, 1870, only appointed commissioners to audit and approve any outstanding claims there might be against the Western and Atlantic Railroad at the time of the lease. The board of commissioners had no power to discharge, by any act of theirs, any person from liability for a criminal act. The plea amounts to nothing more than that the defendant had accounted with an authorized tribunal, and had settled for all the money that had been entrusted to him. The very facts pleaded could have been proven under a plea of not guilty, and had they been shown under such a plea, might have established his innocence, provided no criminal act had been committed by him in fraudulently converting said money, or any part thereof, previous to said settlement. In McCoy vs. The State, 15 Georgia, 205, it was decided that a payment to the owner, after a fraudulent conversion had been committed, did not excuse; that the crime was complete, the larceny accomplished, when the money was converted. If so, then a settlement with the commissioners would not purge the defendant of an offense already committed.

Again, a bailor may appoint an agent to make a settlement with his bailee, or he may make it himself. But if the bailee were to impose on him false or forged receipts, and an acquittance given the bailee founded thereon, that settlement would not be a discharge of the bailee for his fraudulent conversions, which were then unknown to the bailor. He would not thereby be protected against either a civil or criminal proceeding. Nor would it be pleadable in bar, for every fact and issue which could arise under the general issue, would also arise under that plea. So, also, in this case, the State, with this plea filed, could set up every fact which it could under the plea of not guilty. A plea of former acquittal or former conviction would be a plea in bar; for if the simple fact pleaded be proved, it bars all other inquiry, any investigation into the guilt or innocence of the accused, and the record establishing such former judgment could not be met by a reply of fraud. Once convicted and punished, or acquitted, the detendant cannot be dealt with again for the same charge.

3. We do not think that an officer of the State, or of the Western and Atlantic Railroad, could, under sections 4356 and 4358 of the Revised Code, constitute a person as the bailee of the State, so as to make the State the bailor within the meaning of those sections, except by express provisions of law. Even if the officer so entrusting another with property of the State did so by authority of law, it might then be a question whether the person receiving it, if he embezzled it, etc., would not be more properly indictable under section 4355, as an officer, servant or employee. For if the officer who so entrusted another had legal authority so to do, that officer would, quo ad hoo, have the power to appoint the servant or employee, and that person would sustain the relation as defined in section 4355. The punishment would be as great on him for his criminal default in the premises as under either of the sections 4356 and 4358. If the appointing officer had no legal authority to create the trust, then his appointee would be his own agent or bailee, and such a case is provided for by the Act of December 14th, 1871, entitled “ An Act to make it penal to withhold money or personal property belonging to the State of Georgia.”

4. The indictment is not sufficient under this Act, because, in the first place, the Act makes it penal for such a person to fraudulently, wrongfully or illegally receive such property or money. The indictment does not make any such charge. In the next place, the Act makes it a criminal act for one who legally receives the money or property, to fail to pay or deliver the same to the treasurer of the State or his agent within ten days after a demand. This indictment was returned by the grand jury within five days after the demand therein is alleged to have been made. So it comes within no part of that Act.

5. Nor can it be sustained under section 4355 of the Revised Code, as it does not charge the defendant to be an “ officer, servant or person employed in any public department, station or office of government of this State,” etc., as prescribed in said section.

Judgment reversed.