Lunsford v. State , 72 Ga. App. 700 ( 1945 )

"Under statutes positively forbidding certain acts irrespective of the motive or intent of the actor, a principal or master may be criminally liable for his agent's or employee's act done within the scope of his employment."

DECIDED JULY 14, 1945. R. F. Mobley and Joel Lunsford were jointly indicted under a misdemeanor indictment containing 22 counts. Lunsford was tried and convicted on count 4, in the criminal court of Fulton County, and acquitted on the other counts. He obtained a writ of certiorari, and on the hearing thereof the certiorari was overruled, and that judgment is assigned as error.

Count 4 charged that the defendants, in the County of Fulton and State of Georgia, on August 1, 1943, "with force and arms, being then and there professional bondsmen, and having become surety on a certiorari bond of R. S. Campbell in a criminal case in which said Campbell was convicted, in the mayor's court of the City of Atlanta, . . of the offense of ``operating a motor vehicle upon a street while under the influence of intoxicating liquors or drugs,' said bond being dated December 3d, 1942, and the condition of said bond being that if said Campbell shall personally appear and abide the final order, judgment, or sentence upon him in said case, then this bond to be void, else of force, and accused, having received the compensation for signing said bond as surety, did thereafter receive other sums of money aggregating forty-five dollars in the case to the final disposition thereof, said sum of money not being due them as surety in said case, and the acts herein complained of were and are contrary to the laws of said State." The Code, § 27-506, provides: "No professional bondsman, becoming surety on a criminal bond and receiving the compensation in the case for signing said bond as surety, or his agent or employee, shall thereafter receive any other sum in the case to the final disposition of the same;" and section 27-9903 declares that a violation of the above-quoted section shall be punished as for a misdemeanor. And it is well settled that any person who aids or abets another in the commission of a misdemeanor is guilty as a principal. The evidence, direct and circumstantial, authorized the jury to find that R. S. Campbell was fined $52 in the recorder's court of Atlanta; that he employed Mobley and Lunsford, professional bondsmen, to sign for him a certiorari bond; that he paid them, or their agents, the compensation for such signing, and thereafter paid them $45 to go on the payment of his fine; that his fine had been reduced, without his application or knowledge, to $25, and that no money had been returned to him by anybody.

It is true that only Mobley signed the certiorari bond as surety. The State introduced in evidence an agreement between Mobley and Lunsford, dated February, 1937, in which it was stated that on said date their partnership "is being dissolved," and that Lunsford "is this day withdrawing from said partnership," and that Mobley "is continuing said business." "The proceeds of said business is to be used in the payment of all costs and forfeitures on past or new business, before fi. fas. are issued; second, all office expenses, including a drawing account to said Mobley; third, in payment of taxes; fourth, $150 per month to Lunsford for the use of said property. The remaining profits, ifany, to be divided equally between the said Mobley and Lunsford. The taxes are to be returned by and in the name of Mobley. The rentals are to be the property of and collected by Lunsford. The repairs on said property are to be made and paid for by Lunsford. The business is to be conducted by, and in the name of, R. F. Mobley. Lunsford is to have no connection with said business, not a partner in said business. The amount heretofore designated as the amount to be paid to him is not paid to him as a partner in said business, but as a rental for the use of his property." (Italics ours.) It is strongly contended by counsel for the plaintiff in error that under said agreement Lunsford was not a partner with Mobley and had no connection with the signing of Campbell's certiorari bond. The agreement might possibly have authorized the acquittal of Lunsford in the trial court; but it was ambiguous and very unusual, and we think that the jury were authorized, under all the facts of the case, to find that the agreement was a mere scheme and device to permit Lunsford to participate in the profits of the business, allegedly carried on by Mobley only, and to escape punishment for any violation of law in connection therewith. Furthermore, the evidence authorized the jury to find that Campbell paid some of the $45 to Lunsford himself, and paid the rest of that amount to Mobley and certain employees of the partnership. "Under statutes positively forbidding certain acts irrespective of the motive or intent of the actor, a principal or master may be criminally liable for his agent's or employee's act done within the scope of his employment." 22 C. J. S. 150, § 84. The defendant introduced no evidence, but made a statement to the jury, which evidently was rejected by them.

In our opinion, the verdict was authorized by the evidence; and the overruling of the certiorari was not error.

Judgment affirmed. MacIntyre and Gardner, JJ., concur.