Camp v. State
| Decision Date | 06 March 1924 |
| Docket Number | 15137. |
| Citation | 122 S.E. 249,31 Ga.App. 737 |
| Parties | CAMP v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Section 186 of the Penal Code 1910 is superseded by section 20 of article 20 of the Banking Act of 1919 (Ga. Laws 1919, p 216), in so far as the two statutes cover the same offenses because of the different penalty prescribed by the later act.
The indictment in the instant case alleged, in substance, that the accused, being cashier of the bank of Shiloh, and having by virtue of such office, the custody and control of the bank's funds, did unlawfully, with intent to defraud the said bank, embezzle and steal $13,257.74 of its funds so intrusted to him; that said amount was not taken in a lump sum, but consisted of various lesser sums received by said cashier for said bank from divers different persons at divers different times during the years 1917 to 1921, both inclusive, amounting in the aggregate to the sum stated; and that the embezzlement of said aggregate amount was effected by making false entries on the books of the bank and false reports of the bank's condition, by abstracting its cash and by other means to the grand jurors unknown, all with the intent and purpose on the part of the accused to defraud said bank. The date of the offense, as alleged at the beginning of the indictment, was January 1, 1921. After so setting out the offense the indictment further alleged that all of said acts of the accused were by him kept concealed and remained unknown until January 11, 1921. Held:
(a) The indictment was not subject to general demurrer.
(b) It did not misjoin in one count separate and distinct offenses of different natures.
(c) It did not undertake to charge, or have the effect of charging, the offense of making a false report of the bank's books, so as to authorize a conviction for either of those offenses, but the sole purpose of the allegations touching such matters was to set forth the fraudulent means used by the accused in effectively committing and concealing the series of embezzlements with which he is charged.
(d) It is not necessary to allege in such a case that the embezzlement was committed without the bank's consent.
(e) Where the thing alleged to have been embezzled or stolen is a trust fund, no description thereof is necessary beyond a statement as to the amount of it and of the facts constituting the trust.
(f) Where, as in this case, the alleged embezzlements extend over a long period of time and embrace numerous transactions with divers different persons at different times, a bill of particulars is not a necessary part of the indictment, even as against a timely special demurrer. "To specify particularly what money was received and embezzled would be impossible, and such a requirement would render the statute ineffectual." Jackson v. State, 76 Ga. 571 (13).
(g) The allegation that all the alleged unlawful acts of the accused remained unknown until a stated date is sufficient, when proved, to prevent the statute of limitations from applying to so much of such acts, if any, as may appear to have been committed more than four years prior to the filing of the bill of indictment.
(h) The indictment was sufficient to withstand all of the grounds of demurrer urged against it, and the judgment overruling the demurrer was not erroneous.
The court gave in charge to the jury that section of the Banking Act of 1919 which defines the offense of embezzlement (Ga. Laws 1919, p. 216, § 20), and further instructed the jury as follows: "Should you find from the evidence that the defendant, while acting as cashier--in the capacity of cashier--of the Bank of Shiloh, issued a time certificate to his mother for $900, and that the bank did not receive the money for same, and that such certificate was wrongfully and fraudulently issued, and that the defendant was either directly or indirectly benefited, then I charge you that you ought to convict the defendant, otherwise not." This excerpt from the charge is assigned as error, on the ground, among others, that it relates to and authorizes a conviction for an offense not embraced in the bill of indictment. Held:
(a) While the above-cited section of the Banking Act provides, in part, that "any officer * * * of any bank * * * who issues or puts forth any certificate of deposit * * * with intent * * * to injure or defraud the bank * * * shall be punished," etc., thus defining a separate and distinct offense, yet, in the indictment now under review, no such offense is alleged to have been committed.
(b) That part of the charge here complained of was erroneous for the reason that there was no indictment on which to predicate.
The state introduced evidence tending to show that a certain sum of the bank's money was embezzled on January 11, 1921, while the accused was in charge as cashier. It appears that, during the progress of the trial, minutes of the board of directors were exhibited to the court, disclosing that on January 6, 1921, the accused was discharged as cashier, and was succeeded in that office by one E. B. Trammell, who is the prosecutor in this case. In the prisoner's statement to the jury he declared that he was in fact discharged as cashier on January 6, 1921; that he thereafter had nothing whatever to do with the bank; that a certain page of the minutes cited by him would so show; and he challenged the state to offer the minutes in evidence. It does not, however, appear that the minutes were offered in evidence by either side, nor does any reason for such failure on the part of either side appear. In this state of the record the accused presented a timely written request for the court to charge as follows: The court's refusal to give this request, in either form or substance, is assigned as error. Held:
(a) While the stealing of a bank's money by a former officer or employee, after complete severance of his connection with the bank, is an indictable offense, yet it is not the offense of embezzlement as charged in this case.
(b) Documents exhibited to the trial judge, but not introduced in evidence for consideration by the jury, require no...
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