Howard v. State , 211 Ga. 186 ( 1954 )

Per Curiam.

1. The indictment, charging embezzzlement under Code § 26-2801, was not subject to the demurrer and motion to quash, which attacks the statute as denying equal protection as required bjr the State and Federal Constitutions and asserts that the indictment was deficient in describing the crime. Carter v. State, 143 Ga. 632 (85 S. E. 884).

2. The indictment contained seventeen counts charging separate crimes of embezzlement, and separate verdicts were rendered upon each count. The grant of a new trial by the court upon some of the counts did not require a new trial on the others. While such indictments may be justly condemned as preventing a fair trial, yet it is not as hurtful to the accused to allow the jury to hear evidence falling short of proving embezzlement as it is to hear evidence proving it. For what has heretofore been said concerning this subject, see Stewart v. State, 58 Ga. 577; Dohme v. State, 68 Ga. 339; Berrien v. State, 156 Ga. 380 (7) (119 S. E. 300); and Simmons v. State, 162 Ga. 316 (134 S. E. 54).

3. But it was error to allow the prejudicial and irrelevant evidence of the purported larceny or embezzlement of certain “I” beams, which were purported to be but not shown to be the property of the city and which were allegedly taken and used by the accused, as this evidence failed to show the commission of a crime in the taking and using of this property. Code §§ 38-201, 38-202. It was not admissible under the similar-method rule, because (1) it failed to prove a crime committed by the accused; and (2) if it had done so, it was not so similar to the crime alleged in the indictment as to come within the exception to the general rule. Allen v. State, 201 Ga. 391 (40 S. E. 2d 144); Mims v. State, 207 Ga. 118 (60 S. E. 2d 373); Henderson v. State, 209 Ga. 72 (70 S. E. 2d 713); Bacon v. State, 209 Ga. 261 (71 S. E. 2d 615). Neither the ruling in Jackson v. State, 76 Ga. 551 (8), nor that in Bulloch v. State, 10 Ga. 47 (54 Am. D. 369), which is therein cited for support, requires a ruling different from the foregoing. In the former the defendant plainly put his character in evidence, as shown and stated in divisions 5 and 9 of the opinion, and proof by the State of any wrongdoings by him was clearly admissible to rebut his statement. The decision in the latter is wholly irrelevant and inapplicable, and in no way supports the ruling in the former opinion wherein it is cited for support.

Argued September 15, 1954 Decided November 8, 1954. Miller, Miller & Miller, Wallace Miller, Jr., for plaintiff in error. Wm. M. West, Solicitor-General, Charles F. Adams, Assistant Solicitor-General, contra.

4. Since the ruling in headnote 3 will require a new trial on all the remaining counts of the indictment, and the evidence then to be submitted may not necessarily be the same as here, no ruling will be made on the general grounds of the motion for new trial or special grounds 2 and 3, as they are merely elaborations of the general grounds as to the sufficiency of the evidence.

Judgment reversed.

All the Justices concur. Duckworth, C. J., and Almand, J., concur specially.