Cody v. State , 100 Ga. 105 ( 1897 )

Little, Justice.

Th© plaintiff in error was indicted in the superior court of Bibb county for the offense of larceny after trust, and,, after the formal part, the indictment charged as follows:

“For that the said Pearce Cody, bn the 21st day of September in the year 1896, in the county aforesaid, did then and there unlawfully, after having been entrusted by Bob. Cherry, 'the owner thereof, with ninety dollars in paper money of the value of ninety dollars, and two dollars in silver money of the value of two dollars, for the purpose of holding and keeping said money for said Bob Cherry, he, the said Pearce Cody, did fraudulently convert said money to his own use and did otherwise dispose of said money without the consent of said Boh Cherry, the owner thereof, and to the injury of him the said Bob Cherry, and without paying the said Bob Cherry the said money or the full market value thereof, on demand, which demand was. made.”

To. this bill of indictment the plaintiff in error filed a demurrer on three grounds: (1) That the bill of indictment-does not set out the grounds for which the money was delegated in trust. (2) That it does not specifically describe the property in said hill of indictment. (3) That said bill of: indictment does not show how the property was- disposed of, hut charges the same to be “otherwise disposed of.” The court overruled the demurrer; the defendant excepted to that judgment, and the case is here on this exception.

1. The first ground of demurrer raises the question, whether one who is charged with having been entrusted with money by the owner to- hold and keep for him, and who fraudulently converts, ¡the same to. his own use, is guilty of any violation of the laws of the State. It is ti*ue that the bill goes further and charges that the bailee did otherwise-dispose of -'the money without the consent of 'the bailor and to his injury and without paying ‘to the bailor on demand said money, or its- full market value; 'but _ we regard the latter part of the charge as surplusage and as adding no-strength to the preceding charge contained in the bill of indictment.

Section 191 of the Penal Code (§4422 of the- Code of 1882) provides for the punishment of any factor, commission merchant, warehouse-keeper, wharfinger, wagoner, stage-driver, or common carrier on land or water, or my other bailee with whom any 'money or any other thing of value may be intrusted or deposited, who shall fraudulently convert the same or any part thereof to his own use, or shall otherwise dispose of the same or any part thereof without the consent of the owner or bailor, to his injury, and without paying the owner or bailor, on demand, the value or market price of same. It is manifest from a -careful reading of the section above referred 'bo- -that it provides for two distinct offenses: (1) If any of the bailees named, with whom any money or other valuable thing Shall be intrusted or deposited, shall fraudulently convert the same or any part thereof to his own use, -the statute is broken. (2) If any of such bailees with whom the property shall be intrusted or deposited, shall dispose of the- same to the injury of the bailor (otherwise 'than to- fraudulently convert it to his o-wn use) without the consent of the bailor, and without paying to the owner or bailor, on demand, the full value -or market price, he has committed an offense against -which the statute-provides. Each of these aetfe is made a distinct offense, punishable as provided in the section. McCoy v. The State, 15 Ga. 205; Soule v. The State, 71 Ga. 270.

The first of these- offenses consists in fraudulently converting to- his own use by the bailee any money -or other thing -of value which may have been intrusted t-o or deposited with Mm. The bill in this ease distinctly charges,. that plaintiff in error, having been intrusted by. the prose- • cutor with a sum of money named in the bill, for the purpose of holding and keeping said money for him, the prosecutor, did fraudulently convert the same tO' his own use. This alleges an offense contemplated and provided for by the section of the code to which we have referred. The money was intrusted to the plaintiff in error to hold and keep for the bailor. These are the grounds and purposes of the bailment, and when such has been done and the bailee, having received the money intrusted for that purpose, fraudulently converts it to his own use, the offense is complete under the statute, and nothing more is required • either to be alleged or proven. The alternative of “otherwise disposing of the same and without paying the value on demand” has mo reference to’ 'this particular offense, but .alone to the second offense embraced in the statute, to wit: where one who has been intrusted with money or other valuable thing shall, otherwise than by fraudulent conversion to his own use, dispose of the property intrusted without the consent of the owner or bailor, and who fails on demand to pay the full value or market price.

"We are cognizant of the fact that this section of the ■Code was considered and construed by this court in the case of Sanders v. The State, 86 Ga. 717, and that under the construction ’then given to it, in the reasoning of •Justice Lumpkin, the bill of indictment mow under review •could not be sustained. It appears in that case that Sanders was charged with fraudulently converting to his own use or otherwise disposing of, without the consent of the bailor, etc., fifteen head of beef cattle, etc. On demurrer it was held there, that the indictment could not he sustained under ■§§-14:22 (the one under which the present bill was framed), .and that an indictment under it which charged ‘the disposition of the property in the alternative was bad.

This ruling was the law, and we fully sustain it now; and if the bill of indictment we have under review charged the offense in the alternative, we would hold it bad under that authority. Such, however, is. not the- nature of the charge-here made. The plaintiff in error is charged with fraudulently converting the property to his own use <md otherwise ■ disposing of the same, etc. Therefore the charge of fraudulent conversion is substantive anti certain; it is not qualified by 'the conjunction or. On the contrary, he is charged with having fraudulently converted the property to his own-use and disposing of it otherwise without the consent of the" bailor. In the case against Sanders, the charge of fraudulent conversion was not made certain; in effect, he was-charged with fraudulently converting to his own use, or' disposing of the property intrusted to him. ISTo bill on demurrer could be sustained-on so uncertain a charge, and the judgment in that case was right.

In the reasoning there; a construction of §4422 of the-Code of 1882, now §191 of the Penal 'Code, was given,, which we cannot adopt as binding on this court. Justice ■ Lumpkin construed the words, “or any other bailee,” occurring in this section, as being ejusdem generis with factors, commission merchants and the other description of’ bailees enumerated, and concluded that the words, “any other bailee,” “should be so restricted as to include only •bailees of like kind as those specifically enumerated.” The case did not require a construction of ’the statute in this regard, but turned on anotirer point where his reasoning was • conclusive. Therefore the construction of the statute as-above quoted was obiter dictum, and is not to be held as an authoritative construction of that statute by this court; and we now rule (Mr. Justice Lumpkin concurring) that a proper construction of the words, “any other bailee,” as-they occur in said section, means to include any bailee; whether he be of the class enumerated or not; any person with whom money or any other thing of value may be intrusted or deposited. This construction of the statute includes the plaintiff in error within its terms, and he is-liable under it as a bailee, if the charge made in the' hill ■of indictment is true.

2. The demurrer raises the question -whether the property is specifically and sufficiently described in the bill. The money charged to have been intrusted is described as '“ninety dollars in paper money of -the value of ninety dollars, and two dollars in silver money of the value of two 'dollars.” This description we deem sufficient. Theft or larceny after a trust or confidence has ’been delegated or reposed, is one of the species or kinds of larceny contemplated by the statute. (Penal Code, §154.) All of which, as to description of the thing alleged to have been stolen, are governed by the same rule. In the case of Berry v. The State, 10 Ga. 511, the money alleged to have been stolen was described as “two thousand dollars of gold and silver coin, of the value of two' thousand dollars, and five thousand -dollars in bank bills, of the value of five thousand dollars,” and this court held such description sufficient. In Watson v. The State, 64 Ga. 61, it was held that it was unnecessary that the indictment should allege that the money converted was lawful currency of the United States. In Blount v. The State, 76 Ga. 17, under an indictment for larceny .from the house, the bill described the goods stolen ‘as “two dollars in lawful currency of the United States.” In Crofton v. The State, 79 Ga. 584, the property described in the hill was “ninety-five cents in money, consisting of silver and nickels, of the value of ninety-five cents.” All •of these indictments were held to be good so far as description was considered. In many of the States, cited in K&palje on Larceny and Kindred Offenses, §77, it has been held that the description of the property given in general terms as money, silver money, etc., giving the value, is sufficient as to matter of description. Our statute deals with money or •other valuable thing. If paper or silver money, of a given value, be stolen or fraudulently converted, the statute is broken. We conclude therefore that the description of the property alleged to have been converted is sufficient to uphold the bill of indictment in the present case.

3. Our reasoning on the first ground of demurrer disposes adversely to the plaintiff in error of the third ground of ’his demurrer. The judgment of the court below overruling the demurrer is affirmed.

Judgment affirmed.

All the Justices concurring.