Bulloch v. State , 10 Ga. 47 ( 1851 )

By the Court.

Warner, J.

delivering the opinion.

The plaintiff has assigned five distinct grounds of error to the judgment of the Court below in this case, which we shall consider in the order the same appear in the record before us.

[1.] The first ground of error assigned is, that the Court erred in admittingin evidence sundry lottery tickets containedinapackage addressed to Maury & Co. with a note written by the defendant, directing the proceeds of the tickets to be remitted to his brother.

The objection urged to the admission of this evidence is, that it appears from the record, that these tickets were purchased anterior to the time the money is proved to have been taken from the bank, and therefore, irrelevant testimony.

It appears from the record, that the defendant was the Cashier of the Central Railroad and Bonking Company, and had the custody of the money and funds belonging to that institution; that on the 2d day of February, 1850, by his own showing, he had in his hands the sum of $120,000; that on or about the 27th of the same month, there was $103,000 taken from the bank, and the defendant absconded from the State about the same time to England, where he was arrested and brought back. It also appears, that the defendant was embarrassed in his pecuniary matters previous to that time, saying it was difficult for him to get along with his private affairs, being pressed by a large judgment, and it was exceedingly difficult for him to live. After the defendant was brought back to Savannah, he admitted to Mr. Cuyler, the President of the bank, that he had been dealing in lottery tickets, and commenced doing so the preceding fall; that his losses in February by lotteries, could not have exceeded $15,000 in that month. The defendant also stated, that in December he drew two prizes in the lotteries, amounting to $12,-000, and that money went to replace money which he had previously taken to purchase lottery tickets, and it made his money good at the end of the month.

There is no positive evidence that the defendant took the money from the bank; his guilt can only be established by circumstantial evidence, that is to say, by proof of such facts and circumstances, as will conduce to establish his guilt in the minds of reasonable men. When a great crime has been committed, it is important to inquire whether the accused party was influenced by any motive to commit such an offence, for the absence of all motive to commit the offence charged against him, affords a strong presumption of his innocence; whereas, if it appears on the contrary, that he was influenced by a very strong-motive to commit the particular offence charged, the probability of his guilt is necessarily greatly strengthened.

Now, the offence with which the defendant stands charged in the indictment is, that as 'the Cashier of the Central Railroad Bank, he did embezzle, steal, secrete and fraudulently take and carry away, alarge amount of money whichhad been entrusted to him as such Cashier. To purchase these lottery tickets, a considerable sum of money was required, as is manifestly apparent to every reasonable mind. But it is urged by the defendant’s counsel, that these tickets were all purchased before the money is proved to have been taken from the bank, and therefore, cannot afford any presumption of his guilt. Concede for the purpose of this investigation, that McAlpin and Fay, the directors who counted the money, were not deceived or mistaken, as to the money being in the bank on the days which they profess to have counted it — yet the evidence of the lottery tickets shows, that to have purchased them, the defendant must have had money obtained from some quarter. Did he borrow the money to purchase the tickets from a friend, or did he purchase the tickets on a credit ? Still the purchase of the tickets created a necessity for money; especially, as the defendant was in debt, and hard pressed to live. The purchase of a great number of lottery tickets, anterior to the loss of the money by the bank, by the defendant, created a necessity for him to have money to pay for them. The purchase of the tickets created a debt, which the defendant was bound to pay, either with his own money, or that entrusted to him by other people. By his own confessions, he had no spare cash of his own, with which to purchase lottery tickets. Did he borrow the money from his friends or other persons to purchase them, before the' money was taken from the bank? If so, he still had a use for money to pay that debt, and who would be most likely to take money entrusted to him, he who had purchased nothing wffiich created a demand for money, or one who had a pressing necessity for it to pay for lottery tickets ? The fact that the defendant had purchased a large number of lottery tickets before the money was taken from the bank, taken in connexion with his pecuniary embarrassments, affords evidence of at least a motive on his part, to have the use'of money ; and as such, it was properly submitted to the Jury, as a circumstance taken in connexion with the other evidence, affording apresumption of his guilt. The question is not as to the gfeci which this evidence may have had on the minds of the Jury, but was it competent to introduce it on the trial, when taken in connexion with the other facts exhibited by the rocord ? We think the evidence offered, was competent, for the reasons already stated.

[2.] The second ground of error alleged in the assignment is, that the Court erred in deciding that the bank bills, charged to have been stolen, were sufficiently described in the indictment.

By the 33d section of the 6th division of the Penal Code, it is declared, that “ Any officer, servant or other person employed in any bank or other corporate body in this State, who shall embezzle, steal, secrete, or fraudulently take and carry away any money, gold or silver bullion, note or notes, bank bill or bills, bill or bills of exchange, &c. shall, on conviction, be punished by imprisonment and labor in the Penitentiary, for any time not less than two years, nor longer than seven.” Prince, 631.

The defendant is accused in the indictment, with embezzling, stealing, secreting and fraudulently taking and carrying away, one bank bill for the payment of five dollars, and of the value of five dollars, of the Central Railroad and Banking Company of Georgia, signed by the President thereof, R. R. Cuyler, and countersigned by the Cashier thereof, George J. Bulloch, while holding the office and employment of Cashier of the said Central Railroad and Banking Company of Georgia.

The defendant is also charged with embezzling, stealing, secreting and fraudulently taking and carrying away other denominations of the bills of said bank, to wit: ten dollar, twenty dollar, fifty dollar and one hundred dollar bills — each denomination of the bills described in the same manner in the indictment as the five dollar bill. The objection is, that the bank bills are not sufficiently described in the indictment. The general rule is, that every indictment must charge the crime with such certainty and precision, that it may be understood; alleging all the requisites that constitute the offence, and that every averment must be so stated, that the party accused may Imow the general nature of the crime of which he is accused. 1 Chitty’s Crim. Law, marginal page, 172. The defendant is accused with having stolen sundry bank bills of a particular denomination, and of a particular value, of the Central Railroad and Banking Company of Georgia, signed by the President of that company, and countersigned by the Cashier thereof, the same being the property of that bank, which were entrusted to the defendant as such Cashier. This description of the bills alleged, to have been stolen by the defendant, is sufficient, in our judement, to inform him of the general nature of the ofence of which he is accused. If a more minute description should be required, as for instance, the date and letter of each bill, a conviction under this section of the Code would, in most cases, be impossible. The Legislature have made the stealing of bank bills larceny, and there exists no good reason why there should be a more minute description of bank bills, than of chattels which are made the subject of larceny. The description of the bank bills in this indictment, is equally as minute and specific, as that contained in the form of a similar indictment in Archbold’s Criminal Pleading, 130. See, also, Rex vs. Johnson, 3 Maul & Selwyn, 539, 553. Commonwealth vs. Richards, 1 Mass. Rep. 337. But the 1st section of the 14th division of the Penal Code, answers the objection raised by the plaintiff in error. By that section of the Code it is declared, that “Every indictment or accusation of the Grand Jury shall be deemed sufficiently technical and correct, which states the offence in the terms and language of this Code, or so plainly that the nature of the offence charged may be easily understood by the Jury.” Prince, 658. Nor do we entertain a doubt, that the defendant could plead the present indictment in bar of another prosecution for the same offence, and with the proper averments contained in such plea, would be protected.

[3.] The third ground of error assigned is, that the Court refused to arrest the judgment, on the ground “that the indictment contained defective counts, and counts in which different offences were charged, and different punishments inflicted by Statute, and that a general verdict of guilty had been rendered, without specifying the count on which the defendant was found guilty.” It is a well settled principle in Criminal Law, that where there are several counts in an indictment, some of which are good, and others bad or defective, that judgment may be rendered against the defendant upon those which are valid. 1 Chitty’s Crim. Law, marginal page, 249. Ib. 640. The People vs. Curling, 1 John. Rep. 322. The State vs. Miller, 7 Iredell’s Law Reports, 275. By the 33d section of the 6th division of the Penal Code, the officer of a bank who commits a larceny after a trust has been delegated, or a confidence reposed, may be punished by imprisonment in the Penitentiary, for any time not less than two, nor more than seven years. By the 36th section of the same division of the Penal Code, any person not an officer employed in any public department of the government or corporate body, who shall be convicted of the same offence, may be punished by imprisonment in the Penitentiary for any time not less than one year, nor longer than five years.

[4.] In some of the counts in the indictment, the defendantis charged with the offence, as the Cashier of the Central Railroad and Banking Company of Georgia; in others, he is charged with the offence in his individual, and not in his official capacity as Cashier. The point made by the plaintiff in error then is, that inasmuch as there are different counts in the indictment, based upon the two different sections of the Statute, and the punishment under each section being different in degree, therefore the judgment ought to be arrested, because the Jury have found a general verdict of guilty, without specifying upon which particular count they intended to find him guilty, so as to enable the Court to pronounce the appropriate judgment. It has been urged in the argument, that the Court cannot know whether the Jury intended to find the defendant guilty of the offence, under the 33d section or under the 36th section of the Code, and that this is a material question, because the punishment prescribed under the two sections is different in degree. By the 16th section of the 14th division of the Penal Code, it is declared, that “ On every trial for any crime or offence, the Jury shall be judges of the law and the fact, and shall, in every case, give a general verdict of guilty or not guilty.” Prince, 660. The question is not whether the Court should have quashed this indictment on demurrer, or compelled the prosecuting officer to elect on which count of the indictment he would try the defendant, but the question here is, whether the judgment shall he arrested. As a general rule of criminal pleading, a defendant cannot be charged with distinct offences in the same indictment; as for instance, larceny in one connt,and perjury in another, forthe reason thatit would necessarily embarrass him in his defence; for he might be willing that a Juror should try him for one offence and not the other; but the same offence, that is to say, the same species of the offence may be charged in different ways, in several counts, in order to meet the evidence. Archhold?s Crim. Pleading, 30, 31. It is no objection to an indictment, that the punishment of the offence in one of the counts is positive, and in the other discretionary; for after a general verdict, the objection of misjoinder maybe avoided, by entering up judgment upon a particular count. 1 Chitty’s Crim. Law, marginal page, 255. The defendant is not charged with two distinct offences in this indictment, but he is accused-in all the counts with the offence of “ larceny after a trust delegated and confidence reposed”.

There is nothing in the different counts which would have a tendency to embarrass him on his trial, or to deprive him of any legal right. The character of the offence is the same in all he counts, and he was entitled to the same number of peremptory challenges, in the selection of his Jurors, to try him upon each and every count in the indictment. The stealing the bank bills as the Cashier of the bank, after a trust delegated and confidence reposed, and stealing the same without being employed in any official capacity, constitutes the only difference. In any view of the question, the offence is stealing the bank bills of the Central Railroad and Banking Company, after a trust delegated and confidence reposed. But it is urged, that stealing the bills as Cashier, is in view of the Statute, a higher grade of the offence, than if he stole them without being such Cashier. Admit it to be so, and what is the legal inference from the general verdict of guilty found by the Jury? Both counts in the indictment being good, the presumption of the law is, that the Jury intended to find him guilty of the highest grade of the offence charged in the indictment, as much so as if on an indictment for murder, containing two counts, one for murder and the other for manslaughter, the Jury had returned a general verdict of guilty. On the trial of an indictment containing two counts, one for murder and the other for manslaughter, and a general verdict of guilty found by the Jury, the defendant would be punished for the higher grade of the offence, for the reason, that the Jury having found the defendant guilty generally, tire presumption of the law is, that they intended to find him guilty of the highest offence with which he was charged in the indictment — murder and manslaughter being the same species of crime, to wit: homicide, but differing only in the degree of guilt. So in the case before us, the defendant is charged in all the counts of the indictment with the same species of crime, to wit: larceny after a trust delegated, and confidence reposed, but differing only in the degree of guilt which attaches to'the offence, when committed under the 33d section or the 36th section. The count in the indictment which charges the defendant with stealing the bank bills from the bank, as the Cashier thereof, under the 3d section,being a good count, and the Jury having found him guilty generally, it is competent for the Court to award judgment against him upon that count, and the motion in arrest of the judgment was properly overruled by the Court below, both upon principle and authority. Archbold’s Crim, Pleading, 31. Young and others vs. The King, 3 Term R. 106. The People vs. Rynders, 12 Wendell’s Rep. 426. Josselyn vs. The Commonwealth, 6 Metcalf’s Rep. 236. Harman vs. The Commonwealth, 12 Serg. & Rawle’s Rep. 69. The King vs. Darby, 4 East, 179. The United States vs. The Pirates, 5 Wheaton, 207. 4 Cond. Rep. Supreme Court U. S. 636. In the last case cited, it was held, that each count in an indictment is a substantive charge, and if the finding conform to any one of them, which in itself will support the verdict, it is sufficient to give judgment. Besides, the 2d section of the 14th division of the Penal Code declares, that “No motion in arrest of judgment shall be sustained for any matter not affecting the real merits of the offence charged in the indictment.” Prince, 659.

[5.] The fourth ground of error taken in the assignment is, that the Court, in charging the Jury, stated, “That it was competent for them to look to circumstantial testimony, as for instance, the acts and conduct of the accused, to ascertain his guilt; such as his absconding and concealing himself for the purpose of escaping the laws, or his being possessed of or using large sums of money, which he could not honestly account for.” It is insisted, that the Court in this charge violated the provisions of the Act of the 21st February, 1850, which prohibits the Judges of the Superior Courts of this State, to express or intimate their opinions as to what has or has not been proved, or as to the guilt of the accused. Pamphlet Laws, 1850,271. On looking to the charge of the Judge, as certified by him in tins record, we think there is no foundation for this objection. The presiding Judge expressly states, that he did not, in any part of his charge, express or intimate, in the remotest manner, his opinion as to what had or had not been proved, or his opinion as to the guilt of the prisoner, but, on the contrary, was extremely guarded on that point.

[6.] The fifth ground-of error which has been taken and urged before this Court is, that the offence for which the defendant is indicted, is created by Statute, and the indictment does not conclude, contra formam statuti, nor in the manner prescribed by the Penal Code of this State.

By the 1st section of the 14th division of the Penal Code, the form of every indictmant or accusation is prescribed, including the commencement and the conclusion thereof. Prince, 658.

Whatever may have been the rule before the enactment of this Code by the Legislature, all indictments for offences under it are now to conclude, after stating the offence, “ contrary to the laws of said State, the good order, peace and dignity thereof.” But it is said the several counts in this indictment do not so conclude as against the defendant, Bulloch, and to maintain that position, it is assumed, that there are twenty-four counts in this indictment, instead of twelve. How is the fact ? Is the accusation against Bulloch, as the principal offender, contained in a separate count against him, independent of James Quantock and George Thrift as accessaries, or are they all accused in each count, the one as having actually committed the offence, the others, as being accessaries after the fact? Each count in the indictment charges and accuses George J. Bulloch with the of-fence of larceny, after a trust delegated and confidence reposed, and James Quantock and George Thrift as being accessaries thereto, after the fact, and after stating the offence against both, as directed by the 1st section of the 14th division of the Code, concludes in the manner prescribed thereby, as being “ contrary to the laws of said State, the good order, peace and dignity thereof.” This indictment is believed to have been framed by the pleader in strict conformity with the English precedents. After stating the offence of the principal, (says Mr. Archbold,) and immediately before the conclusion of the indictment, charge the accessary after the fact, thus, &c. Archl'bos Crim. Pleading, 401. In each count of this indictment, the accusation is made against all three of the defendants; the offence of the principal offender is stated, and before the conclusion of each count, the accessary after the fact is charged in accordance with the most approved English precedents, and then each count concludes in the manner prescribed by the Penal Code. We cannot for a moment doubt that the pleader, in framing this indictment, upon any thing like a fair construction of it, included the principal offender, and the accessaries after the fact, in one and the same count, and that he so intended, is obvious from the commencement and conclusion of each and every one of the counts. There being, in our judgment, but twelve counts in the indictment, each one concluding in the manner and form prescribed by the Penal Code of this State, the fifth ground of error assigned upon the record must be overruled.

Having disposed of all the grounds of error assigned to the judgment of the Court below, contained in the record, it only remains for us to declare that judgment to be affirmed.

Judgment of the Court below affirmed.