DocketNumber: 22705
Citation Numbers: 47 Ga. App. 276
Judges: Broyles, Guerry, MacIntyre
Filed Date: 8/2/1933
Status: Precedential
Modified Date: 1/12/2023
The indictment in this ease charges J. W. Eubanks with the commission of a felony, in that he "unlawfully and fraudulently, after having been intrusted by J. A. Strother with fifty-four railroad oak cross-ties for the purpose of selling the same, the same being of the value of $45, and of the property
In special grounds 7 and 8 error is assigned because the court charged the jury in the terms of Michie’s Penal Code (1926), § 192, as follows: “If any person who has been intrusted by another with any money, note, bill of exchange, bond, check, draft, order for the payment of money, cotton or other produce, or any other article or thing of value, for the purpose of applying the same for the use or benefit of the owner or person delivering it, shall fraudulently convert the same to his own use, he shall be punished by imprisonment and labor in the penitentiary for not less than one year nor longer than five years; except that where the money, note, bill of exchange, bond, check, draft, order for the payment of money, cotton or other produce, or any other article or thing of value, so fraudulently converted does not exceed fifty ($50.00) dollars in value, the punishment shall be as for a misdemeanor.” Under said grounds it is urged that the indictment was drawn under section 194 of the Penal Code (1910), and not under § 192 as amended by the act of 1910 (Ga. L. 1910, p. 60; Michie’s (1926) Penal Code, § 192), and that said charge was not supported either by the allegations of the indictment or by the evidence in the case, and that in giving said charge and im
Section 194 of the Penal Code (1910) is as follows: “Conversion when intrusted for selling. If any person who has been intrusted by another with any cotton or other produce, or any goods, animal, or other article of value, for the purpose of selling the same and paying the proceeds of such sale to the owner’ or other person so intrusting or delivering the article, shall fraudulently convert the same, or any part thereof, or the proceeds of any part thereof, to his own use, or shall otherwise dispose of the same to the injury and without the consent of the owner or other' person so intrusting or delivering it, and without paying to sucln owner or person the full value or market price thereof, he shall be punished by imprisonment and labor in the penitentiary for not less than one year nor longer than five years.”
The property set out in § 192 is intrusted “for the purpose of applying the same for the use or benefit of the owner or person delivering it.” Said section also contains the mandatory provision that if the property converted does not exceed fifty dollars in value, the punishment shall be as for a misdemeanor; while § 194-deals exclusively with property intrusted to another “for the purpose of selling the same and paying the proceeds of such sale to the owner or other person so intrusting or delivering the article,” and the offense is complete when the person to whom the property is intrusted “shall fraudulently convert the same, or any part, thereof, or the proceeds of any part thereof, to his own use, or shall otherwise dispose of the same to the injury and without the consent of the owner or other person so intrusting or delivering it, and without paying to such owner or person the full value or market price thereof.” Furthermore, § 194 does not provide for any mandatory misdemeanor punishment. There can be no doubt that the two code sections under consideration prescribe two entirely separate and distinct crimes, and a casual reading of the indictment suffices to show that it was drawn under § 194, and not under § 192. In so far as the evidence makes any case against
Can it be fairly said that there was error without injury because a misdemeanor punishment was made mandatory under § 192 (and not under § 194), and the court did, as a matter of fact, impose a very light misdemeanor sentence upon the defendant? We think not. The fact that the judge charged § 192 and, in effect, told the jury that the defendant could only be punished as for a misdemeanor, and the fact that he gave a misdemeanor sentence after the jury had found the defendant guilty of a felony, without any recommendation that he be punished as for a misdemeanor, conclusively shows that the judge erroneously thought that § 192 was applicable to the case. Is it not highly probable that the jury thought as did the court ? The court charged a code section that was entirely inapplicable to the case, and emphasized his opinion that it was applicable by pointedly applying the misdemeanor punishment prescribed by it to the defendant in the case; for, immediately following his charge of § 192, the judge told the jury: “It is conceded in this case that the alleged value of the property alleged to have been converted is less than $50, which makes it a misdemeanor.” The charge complained of, immediately followed as it was by instructions based upon § 194,
The judgment having been reversed because of the said erroneous charge of the court, we shall not discuss either the general grounds of the motion for a new trial or the two special grounds complaining that the venue of the offense charged was not proved. The remaining special grounds disclose no reversible error and present no question that is new or interesting, and a discussion of them would answer no good purpose.
Judgment reversed.