Gibson v. State

1. (a) The defendant was convicted on an indictment drawn under the provisions of the Code, § 26-2812. After his amended motion for a new trial was overruled he filed his bill of exceptions here for review. This is the same defendant who appealed a case to this court (Gibson v. State, 77 Ga. App. 270, 48 S.E.2d 309), after conviction under the same Code section, the caption of which is "Using Proceeds of Payment on Account of Improvement of Real Property for Other Purposes." The contract involved here is in all respects similar to the contract involved in the case of Gibson v. State, supra, except as to the amount of money advanced, improvements to be made, and the time and place for the performance of the improvements. In the instant case the contract was to be performed in Candler County, in the other case, in Jenkins County. The amount to be advanced as the work progressed was substantially the same under the contract in the instant case as was provided in the case cited. The evidence in the instant case as to the misappropriation of the funds advanced is substantially the same as in the case cited, except in the instant case the defendant in his statement admitted that he owed the contractor certain sums which had not gone into the improvement of the real property in question. Here, as in the case cited, the defendant in his statement gave certain excuses for converting the money to other purposes than those specified in the contract. Without going into details as to the evidence relating to the general grounds, we express here as we concluded in the case cited, that the evidence is amply sufficient to sustain the verdict.

(b) As to the special grounds, in the instant case, they are substantially the same as were made in the case cited above against the same defendant. We see no necessity or benefit to be derived in particularizing as to them in the instant case. We refer to what we said concerning the special grounds in the case cited, and adjudge that they are controlling in the instant case. The special grounds here contain the same number of assignments of error and are in substance the same and by large almost verbatim as were the special grounds in the case cited. What we said there applies here.

The court did not err in overruling the amended motion for a new trial for any of the reasons assigned.

Judgment affirmed. MacIntyre, P. J., and Townsend, J.,concur.

DECIDED JULY 16, 1948.