Price v. State , 76 Ga. App. 283 ( 1947 )

1. Under the evidence in this case, the jury were authorized to find that the money was entrusted to the defendant for the use and benefit of the owner, and that the defendant converted the same to his own use and there was no loan of the money from the owner to the defendant.

2. Where, as here, the evidence authorizes the jury to infer that at the time the money was entrusted by the owner for a specific purpose, in Fulton County, Georgia, the defendant intended to convert the money to his own use and not to apply it to the benefit and use of the owner so entrusting it, the venue may be laid in Fulton County, Georgia.

DECIDED OCTOBER 15, 1947. ADHERED TO ON REHEARING DECEMBER 12, 1947. The defendant was convicted of larceny after trust under the Code, § 26-2809. He filed his amended motion for a new trial, which was overruled. To this judgment he excepted.

The jury were authorized to infer from the evidence of the State, together with some portions of the defendant's statement, as follows: Austin Abbott was engaged in the automobile business in Fulton County, Georgia, and J. H. Price approached him to become connected in the enterprise of Abbott; and Abbott entrusted to Price $2550 with which Price was to purchase automobiles for Abbott. The defendant received the money — $800 in cash and a check for the balance, which he subsequently endorsed and cashed. At the time the money was turned over to Price by Abbott, Price signed an instrument, which was introduced in evidence. This instrument was a printed form note with $2550 on the left hand top corner dated February 17, 1947, Atlanta, Georgia, and stated "on demand I promise to pay to the order of the First National Bank, Atlanta, $2550." In the body of the note which was left for the insertion of collateral, these words appear, "Cash advance to buy cars for Austin Abbott for resale on 50-50 basis of profit or loss." This was signed by John H. Price. On the left-hand margin of the note is written, "one check on Evans and Millen number 1918 for $1750.00, Cash $800.00, total, $2550.00." In the other portion of the note were the usual stipulations in such a bank-demand note. Abbott testified that this was not in fact a demand note and was not so intended; that it was used merely as a memorandum expressing the purpose for which the money was advanced by Abbott to the defendant. The note was on a First National Bank form, but the bank had nothing to do with these funds. After the defendant had received the money, Abbott furnished him a car for the purpose of going to purchase the car or cars for Abbott with the money which Abbott had furnished, and to bring the car or cars back to Atlanta for Abbott to resell. The defendant was privileged to purchase the cars at any place. He did, however, suggest to Abbott that he was going to Birmingham for this purpose. He did not return for some time, and Abbott located the car which Abbott had furnished the defendant in a storage lot in Birmingham, and retrieved it. The defendant thereafter was apprehended in Seattle, Washington, where he was arrested and returned to Atlanta. The defendant did not return the money, or any portion thereof, to Abbott, nor did he buy a car for Abbott. In his statement his explanation was that, after receiving the money from Abbott, "I left here — Mr. Abbott and I had an agreement to share the profits in buying and selling the automobiles. I was to buy them and he was to sell them on a 50-50 share of the profits;" and further, that the defendant first went to Anniston, Alabama, and tried to buy a car and left there and went to Birmingham where he checked in at a hotel after putting the car in a garage; that he took a couple of drinks, met a girl that he had never seen before; that the two of them went to the defendant's room about 9:30, and that is the last the defendant remembers; that the next day when he woke up he had been "rolled" for $350 and from there "I just went hay-wire and went on this tour." He stated that when the officers picked him up in Seattle he had just returned from the bus station trying to get a schedule back to Alabama. The defendant further stated that Mr. Abbott had never demanded the money back, and that after the defendant was arrested Mr. Abbott stated that all he wanted was his money, and the defendant expressed to Abbott his desire to work it out. This is substantially the evidence, except that the defendant offered proof of his good character, and one witness testified that he was working with Mr. Abbott on a 50-50 basis, a partnership basis, and that that was the way the defendant was working. 1. This court has many times held that, where a verdict is returned and approved by the trial judge on a motion for a new trial, the evidence is to be construed most strongly in favor of the verdict. The defendant contends through his able counsel that the transaction was a loan from Abbott to the defendant, and that title to the money passed to the defendant. If this be true, the judgment should be reversed, otherwise not. In such a situation as here presented, it is our opinion that the jury would be authorized to infer that the money was entrusted by Abbott for his use and benefit in purchasing automobiles, which were to be resold by Abbott and that the defendant was to receive one-half of the profit or suffer or be liable for one-half of the loss on such resale. The defendant did not contend that he ever purchased any cars, and he admits that he used the money advanced to him for his own use and not for the use and benefit of Abbott. The jury, we think, were authorized to find that the title never passed into the defendant, and that the transaction was not a loan of money from Abbott to Price. See, in this connection, Brandt v. State, 71 Ga. App. 221 (30 S.E.2d 652). Counsel for the defendant contend that this case is almost identical with Carter v. State, 53 Ga. 326, which was reversed. We think that the distinguishing difference between theCarter case, supra, and the instant case, is that the evidence in the Carter case clearly shows that the bailment was one as set out in Code § 26-2807, but the indictment was not written under that section; and the indictment in the instant case was founded on the principle of law set out in § 26-2809. Counsel for the defendant in error also rely upon the case of Wylie v.State, 97 Ga. 207 (22 S.E. 954). In comparing the facts of that case with those of the instant case, it will be readily seen that the court there draws a distinction to the effect that in the Wylie case there was merely a payment in advance under a contract, although the money might have been obtained fraudulently. At this juncture we wish to call attention to the case of Walker v. State, 117 Ga. 261 (43 S.E. 701), wherein the Wylie case was distinguished from cases similar to the one now before us. See also Martin v. State, 123 Ga. 478 (51 S.E. 334). In this connection we might also call attention to McLendon v. State, 14 Ga. App. 737 (4) (82 S.E. 317), which reads in part as follows: "On the other hand, according to the testimony for the State, the accused was entrusted with a sum of money for a specific purpose, with which he did not comply, and so many months elapsed, after the deposit of the money and the failure to produce the suit of clothes, as to authorize the inference upon the part of the jury that he converted the money to his own use, especially since he made no report during that time as to the alleged miscarriage of the suit, and, on the contrary, changed his place of residence without communicating information of the loss of the suit and without offering to refund the money. A conversion by one, to his own use, of money or property belonging to another creates a conclusive presumption of fraudulent intent where, as in the present case, he does not in his statement assert that the money with which he was entrusted for a single purpose was ever in fact expended for the purpose for which it was deposited with him."

2. Special ground 1 assigns error on the ground that the venue was not proved; that it was not shown by any of the evidence that the defendant converted the money in Fulton County, Georgia; that if any crime was shown to be committed, as alleged in the indictment, the venue was in Alabama. We have only the defendant's statement as to where he spent the money. Of course the jury were not bound to believe this. We think that under the evidence they were authorized to believe that at the time the defendant received the money he had the intent to convert it to his own use, under the facts of this case. In Maynard v.State, 47 Ga. App. 221 (3) (170 S.E. 265), it was held that the venue in a case such as now before us may be laid in the county where the property was entrusted, although the physical conversion of it was in another county, where the facts of the case authorized the jury to find that the intent to convert the money was formed in the county where the property was entrusted. We think that the evidence authorized the jury to infer that the defendant intended, at the time he received the money, not to buy the cars for which purpose the money was entrusted to him, but to convert the money to his own use. See, in this connection,McCranie v. State, 51 Ga. App. 192 (179 S.E. 826);Blocker v. State, 58 Ga. App. 560 (199 S.E. 444). We do not think that the case relied on by counsel for the defendant,Clack v. State, 47 Ga. App. 323 (170 S.E. 398), is authority to the contrary. The Clack case cites Keys v.State, 112 Ga. 392 (37 S.E. 762, 81 Am. St. R. 63), and says: "Where a person is entrusted with money in X county, to be delivered to a person in another county (the other county being out of the State), that upon a showing that the money had not been delivered, the person so entrusted could be prosecuted in X county, as the jury would be authorized to find that the conversion took place in that county, although the defendant testified that he carried the money to the other county and delivered it." It will thus be noted that the Clack case and the Keys case held to the effect that, under the contentions as set out in those cases, the jury may be authorized to find venue in either of two counties. There is no merit in this contention.

This case, by consent, was tried by the presiding judge without a jury. While it will be noted that we have referred to the facts as though a jury, instead of a judge, were passing on them, yet the principle of law and the effect is the same whether the facts are passed upon by the presiding judge or a jury; and since the decisions cited refer to what the jury were authorized to find and infer as a matter of fact from the evidence, the judge was likewise authorized, acting without a jury, to find the facts and infer therefrom the same conclusions as a jury. Hence, since the decisions referred to in the opinion were cases where the jury passed upon the facts, we use the words, "the jury," throughout, as the fact-finding body, rather than the judge acting as the jury.

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.