Gibson v. State , 77 Ga. App. 292 ( 1948 )

1. The evidence supports the verdict on the general grounds.

2. Each ground of a motion for a new trial must be complete and understandable without resorting to examination of the brief of evidence or any other part of the record, and where they are not so they will not he considered.

DECIDED MAY 20, 1948. REHEARING DENIED JUNE 9, 1948. F. A. Gibson was convicted on an indictment, omitting the formal parts, as follows: "with the offense of felony for that the said accused F. A. Gibson on the 20th day of January, 1947, in the county aforesaid, unlawfully and with force of arms, did then and there commit a felony by then and there contracting in the name of Frank A. Gibson, doing business as Builders Service, with Mr. and Mrs. John Evans to build for them a concrete-block residence to be located on the West side of Hendrix Street, directly in front of the Millen High School Building, in the City of Millen, said State and County, said contract having been signed by John T. Evans and by Builders Service, Inc., by F. A. Gibson, President, as contractor. After entering into said contract for the erection of said building, the said John T. Evans paid to the said F. A. Gibson the sum of $3,554.50, which money was to be used for erecting and building said dwelling and for improving said real property and after procuring said sum of money, as aforesaid, the said F. A. Gibson with intent to defraud the said J. T. Evans, appropriated said money to his, the said F. A. Gibson, own use, which was other than to pay for labor or service performed on or materials furnished by his order for this specific improvement, while the said F. A. Gibson left unpaid for certain material and labor for which he, the said F. A. Gibson, became liable, leaving said material and said labor unpaid for. Said amounts left unpaid being as follows: Bill to Mathews Lumber Company for material, $545.08; bill for material for cement blocks to R. J. Kennedy, $365; bill for material for cement blocks to Chatham Cement Products Company, $456.75; bill for labor due H. G. Sherrod, $103; for labor due George Saxon, $30.70; for labor due G. C. Humphrey, $100; labor due H. G. Sherrod, $37.50, and to Lewis Saxon, $20, contrary to the law of said States, the good order, peace and dignity thereof." The defendant filed a motion for a new trial on the usual general grounds and thereafter filed what is termed a number of amendments thereto. The court overruled the amended motion. It is on this judgment that error is assigned here.

The indictment was drawn under the provisions of the Code (Ann. Supp.), § 26-2812, which reads as follows: "Using proceeds of payment on account of improvement of real property for other purposes. Any architect, landscape architect, engineer, contractor, subcontractor, or other person who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or, materials furnished by his order for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid, shall be guilty of a felony and upon conviction shall be punished by imprisonment for not less than one year nor more than five years, or upon the recommendation of the jury, or in discretion of the trial judge, punished for a misdemeanor. A failure to pay for the material or labor so furnished shall be prima facie evidence of intent to defraud. (Acts 1941, p. 480.)"

The essential provisions of the contract between the defendant F. A. Gibson, the contractor, and the owner of the property, read as follows: "Witnesseth. That the owners have this day contracted with the contractor to erect a house in the City of Millen, according to the plans and specifications furnished by the contractor and signed by the owners, and the contractor has agreed to build said house in accordance therewith, and the terms hereinafter set out.

"The owners agree to pay the contractor the sum of $6500 to the contractor for the erection of said building, and the payments are to be made as follows: $2500 at the time of the signing of this contract; $2000 when the roof has been completed on said building; and $2000 on the completion of the building, and release of all liens by the contractor and evidence of the same furnished to the owners. The contractor hereby agrees to begin work on said building as soon as sufficient material can be placed on the building site, said time being estimated as approximately ten days, and to pursue the construction of said building just as fast as possible until the house is completed, time not to exceed four months, and to protect the owners of all liabilities that might occur from the construction of said house."

Without going into details concerning the evidence, the jury were authorized to find that the defendant received approximately $3500 before the roof had been completed; that he had not paid for material furnished and work done toward the erection of the dwelling house. They were authorized to find that he had not spent for material and labor over approximately $1500. There was some contradiction in the evidence as between the State's evidence on the one hand and the defendant's evidence and his statement on the other hand. This was purely a question for the jury. The jury resolved it against the defendant and we have no authority to disturb the verdict. 1. The defendant abandoned the contract, leaving liens or potential liens both for material and labor against the property.

The court did not err in overruling the motion for a new trial for any reason assigned, on the general grounds.

2. We come next to the special grounds: First, it is alleged that the defendant amends the original motion in the following particulars: "(a) The court should have charged the law relative to misfortune relative to accident, etc., even in the absence of a request to charge. [Citations of decisions].

"(b) Documentary evidence was introduced, and by defendant's statement, and other records in the case as shown by the records in this case, and same should have been charged by the court even in the absence of a written request. [Citations of numerous decisions]. There was only one defense upon which was [we?] relied, documentary evidence. [Citations of decisions].

"(c) Terms of statute [citation of decision], and the law on the charge as to statements.

"(d) Theory raised solely by defendant's statement, and was only defense in the case, the court should have charged upon theory, and is error to grant new trial, though not requested. [Citation of decision].

"(e) In order to constitute even embezzlement there must be both a wrongful conversion and a fraudulent intent. [Citation of decisions].

"(f) No breach of trust have been shown. [Citation of decision].

"(g) Law embezzlement or misappropriation of funds does not apply to real estate [citation of decision]. In this connection there has not been proven any evil or criminal intent.

"(h) A person should not be convicted for a crime or misdemeanor, where committed by misfortune or accident, and where it satisfactorily appears that there was no evil design or culpable neglect or criminal intent. [Citation of decision].

"(i) Defendant set up in his statement, and as a part sole statement, and defense thereof, that had not there been a railroad strike, that his obligations would have been met with, and that, even though prosecutor had already failed in his, that the failure of materials was and had been due to a R.R. strike, and made it impossible for him to have completed his job. [Citation of decision].

"2. Judge may exercise his discretion when verdict decidedly and strongly against verdict and evidence to support same, though there is some slight evidence in favor of finding. [Citation of decision].

"3. Elements of offense: Where evidence was insufficient to establish essential elements of offense charged, error to refuse new trial. [Citation of decision].

"4. Where evidence was sufficient to authorize conviction on only one account, or two accounts, court erred in refusing new trial. [Citation of decision]. The verdict without evidence to support it contrary to law. [Citation of decisions]. Duty of judge to grant new trial where evidence shows verdict was unjust so flagrantly as to shock the moral sense. In this connection court should not do otherwise than grant a new trial. [Citation of decision].

"5. Duty of judge to grant new trial where evidence shows verdict unjust and inequitable. [Citation of decision].

"6. Movant most respectfully submits that the venue in this case has not been sufficiently proven as required under the provisions of the contractor's law. [Citation of decisions]. But since there was no venue proven in this case, and the particular point is or was specifically raised in the motion for a new trial then the court should grant a new trial. Acts 1911, p. 149. Movant most respectfully submits, and points this honorable court's attention to the record herein referred to, and so insists. [Citation of decisions]."

We have set out the special grounds verbatim with the exception of decisions cited, for the reason that we desire to let them speak for themselves as to their merit. Generally speaking, most of them are mere arguments based on conclusions. None of them are complete within themselves. It is well established that a special ground in a motion for a new trial must be complete within itself. This court and the Supreme Court have repeatedly held that grounds of motions for a new trial not sufficiently complete within themselves, will not be passed upon. See the numerous decisions to this effect under the Code (Ann.), § 70-301, catch-word "completeness," and the Supplement thereto.

Since in the amended grounds and in the brief of counsel for the defendant it is contended that the venue was not proven, we have studied the evidence carefully as to this contention. As to this point the jury were authorized to find that the contract was executed in Jenkins County, Georgia; that the building was to be erected in Millen, Jenkins County, Georgia; that the various checks given the defendant were headed Millen, Georgia, which is in Jenkins County, and they were given on the Bank of Millen. We might state that we have read the evidence carefully and also the charge of the court. The charge of the court was fair, clear, and full as to every issue involved. None of the purported special grounds are meritorious, even if they were formally complete.

The court did not err in overruling the motion for a new trial for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur