Rollins v. State , 215 Ga. 437 ( 1959 )

Duckworth, Chief Justice,

dissenting. The grounds upon which my dissent is based are, briefly stated, as follows: No one has, and indeed no one can, correctly deny that our law demands that all criminal laws be strictly construed, and this means that nothing can be added to or subtracted therefrom by implication. The law under which this indictment is drawn expressly states that the agreement or conspiracy must be to take “property belonging to the State.” The above rule of construction will not allow an addition to this language as is done in the indictment, to take property that will in the future belong to the State, if and when certain events occur. The exact words of the indictment refer to a conspiracy to take the property “from time to time after obtaining purchase orders.” In substance, the indictment charges that this defendant conspired and agreed with Brinson that in the future, if and when property was sold to the Parks Department, invoices would be falsified to allow collections for property not delivered. By its express terms nothing will be done and no money illegally taken unless and until a future event, to wit, purchases for parks occur. Should no future purchases occur, whereby the money intended to be taken arises, or, stated more plainly, whereby the State owns such money — the difference in the invoice and the price of the property actually delivered, then the alleged conspirators agree to take nothing. It would not be unreasonable to have expected that the future events which constitute conditions precedent to an agreement to take the money would never occur. Even the fear, without any court order directing it to be done., that the parks would be integrated might well have caused their closing, and hence precluded the future purchases without which there was no agreement to take any money. If liberty is to be secure, and if those charged with crime — the guilty as well as the innocent — are to receive fair court trials, we simply must not allow judicial expansion of criminal laws to make them cover what the terms of the law do not cover. This statute refers only to property owned by the State. This does not say or mean, as the indictment charges, property the State may or may not acquire in the future, depending upon whether or not a contemplated future event occurs.

Head, Justice, dissenting. Stripped to its essentials, the provisions of Code § 26-4201 are as follows: “Any two or more persons who shall . . . agree to . . . illegally obtain from the State . . . any property belonging to the State . . . shall be punished. . .” Those of Code § 26-4202 are: “Any person holding any public office who shall . . . agree with any person . . . to . . . illegally obtain from the State . . . any property . . . shall be punished. . .” The indictment here alleges that the defendants illegally agreed to obtain from the State $3,000. What three thousand dollars? Obviously not any particular three thousand dollars, in bills, in coin, in checks, in warrants, but simply the amount of money or credit with which the State intended to purchase certain definite property, listed on invoices in its possession, and of which it was, or was intended to be, defrauded, by nondelivery of the property which it had ordered. In preparing the indictment, the State attempted to identify the $3,000 (as property of the State and accordingly, under the above Code sections, the subject matter of the conspiracy), by showing that it was a part of the money paid by the State’s Supervisor of Purchases to Hart-Rollins Furniture Company for “specified park furniture and equipment.” The State has thus identified its property, the subject matter of the conspiracy, as a part of a particular property belonging to it — that is, a part of all of the money which it would take to pay for all of the purchases made by the State from Hart-Rollins Furniture Company for park furniture and equipment. Yet the $3,000 in money is not identified at all until it is identified in relation to the purchase of property, and therefore it is absolutely clear to me that no identity of property has been alleged until the thing purchased has been alleged, since this, and this alone, can identify the money which is the property of the State and which is alleged to be the subject matter of the conspiracy, and thereby to distinguish it from all of the other money of the State.

Assuming that one of the alleged coconspirators testifies upon the trial of this case that he and the other defendant did agree to> the conspiracy charged, a valid verdict of guilty can not be reached until the State, by proving acts pursuant to the alleged conspiracy, convinces the jury that the conspiracy in fact existed. Code § 38-121. It follows that, both as related to pleading and as related to evidence, the State must necessarily identify the property which was the subject matter of the conspiracy, for, unless the conspiracy has some subject matter to act on, it can not exist. While Code § 27-701 requires only that an indictment state the offense in the terms and language of the Code, no indictment relating to property has ever been held to be sufficient under the Code which did not describe the property sufficiently to insure its identification. An indictment for larceny which does not describe the property stolen sufficiently to identify it is subject to special demurrer. Walthour v. State, 114 Ga. 75 (39 S. E. 872); Melvin v. State, 120 Ga. 490 (48 S. E. 198). In larceny after trust cases, the particular trust must be alleged ■and proved. McNish v. State, 88 Ga. 499 (14 S. E. 865). Where the purpose of the delivery is alleged as one thing, another purpose can not be proved on the trial. Carter v. State, 53 Ga. 326. The State here could not allege an agreement to fraudulently convert the State’s money intended for a park bench, and prove an agreement to convert the State’s money intended for a rowboat, as this is different property.

The State should not be allowed to proceed by refusing to identify any acts at all. It does not identify property to say “this is a part of a total amount of property” as to items which are not interchangeable. The State can not indict for larceny from the house by alleging that the defendant did take and carry away “a part of all of the furniture in the house consisting of chairs, tables, and beds,” without stating what property is the subject matter of the crime. The same rule should apply in the present case.

It does not appear how much business or how many transactions were had between the Director of State Parks and the Hart-Rollins Furniture Company. There may have been hundreds of transactions. The very general indictment setting forth scarcely more information than that contained in the Code section (which, being a form, is obviously insufficient to identify anything) thus permits the State to sandbag the defendant Rollins with evidence he can not possibly be prepared to refute. The indictment in this form withholds from the defendant the facts that are necessary in order that he may prepare a defense. What harm can be done to the State by charging specifically what transactions occurred between the parties that resulted in the fraud and the loss of $3,000? If the charges are true., it need have no apprehension about establishing them, for the State surely knows what items it paid for that it did not receive. If the charges are not true, the defendant ought not to be called upon to refute false accusations. The only way he can get a fair trial is to know in advance what he is charged with. The majority opinion in this case precludes the right of the defendant to information essential to -his defense.