Dennison v. State , 91 Ga. App. 143 ( 1954 )

Carlisle, J.

Where, on the trial of one charged with the simple larceny of a certain described hog, it appears from all the evidence, and every reasonable inference to be drawn therefrom, that the alleged owner (a landlord) of the hog voluntarily and without being induced by fraud, delivered to the defendant (his tenant-sharecropper) a number of brood sows under an agreement that the defendant should care for and feed the sows in consideration for which he should have one-half of the increase from such sows, that the defendant was authorized to take such increase to market and sell them in his and the owner’s behalf, and that he was authorized to sell any of the brood sows, if he replaced them from the increase, and it appears that the defendant entered upon the agreement and took possession of the sows for the purposes named, and some fifteen months later he was apprehended in the act of selling one of the sows which he had put -on the market in the name of a third person—the defendant’s alleged conversion of the sow may be larceny after trust, but it is not simple larceny, and his conviction of the latter crime is contrary to law'. Smith v. State, 85 Ga. App. 875 (70 S. E. 2d 548); Basley v. State, 10 Ga. App. 470 (73 S. E. 624); Wright v. State, 18 Ga. App. 337 (89 S. E. 432). See especially in this connection Mobley v. State, 114 Ga. 544, 545 (40 S. E. 728), where it is said: • “The case of larceny after trust arises when there is an agency on the part of the person entrusted with the property of another by virtue of which the person so entrusted is to do something with the properly jor his principal’s benefit, or where there is a bailment of some description.” (Italics ours.) Consequently, the trial court erred in denying the defendant’s motion for a new trial, based solely on the general grounds.

Felton, C. J., Gardner, P. J., and Quillian, J., concur. Townsend and Nichols, JJ., dissent. Decided December 1, 1954. Wm. A. Zorn, for plaintiff in error. W. Glenn Thomas, Solicitor-General, contra.

Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232), requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.

Judgment reversed.