Cason v. State
| Decision Date | 04 February 1914 |
| Docket Number | 5229. |
| Parties | CASON v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
An indictment under section 186 of Penal Code 1910 which alleges that the accused did "embezzle, steal, secrete, and fraudulently take and carry away" money belonging to a banking corporation of this state is not subject to demurrer on the ground that it fails to allege that the money was taken and carried away with intent to steal the same (citing Words and Phrases, Steal).
The word "steal" implies a taking and carrying away and a criminal conversion. While every crime consists in the joint operation of act and intention, and on the trial of an indictment of the nature above indicated the trial judge might, with propriety, instruct the jury that the money must have been taken with intent to steal, yet his failure to do so in the present case was not cause for a new trial; the jury having been instructed that, before they could convict they must be satisfied beyond a reasonable doubt that the accused did embezzle, steal, secrete, and fraudulently take and carry away the money described in the indictment.
The indictment was not subject to any of the demurrers.
The evidence demanded the conviction of the accused, and it was therefore immaterial what the judge charged or failed to charge the jury.
There being in the evidence or in the prisoner's statement nothing in reference to the length of time he had been in jail before the trial, it was not proper for counsel for the accused, in requesting the jury, in the event of conviction to recommend a misdemeanor punishment, to state the length of time the accused had been in jail, and the court did not err in compelling counsel to refrain from such argument.
The trial judge may, in the interest of truth, interrogate a witness in order to elucidate matters which have not been made clear to the court, provided that in so doing the judge does not intimate or express an opinion in reference to what has or has not been proved or the guilt of the accused.
Remarks made by a trial judge in imposing sentence after a verdict of guilty cannot be made the subject-matter of review in the Court of Appeals.
A certificate made and filed for the purpose of organizing a banking association under the general banking law, if in conformity with the terms of that act, is evidence of the truth of the facts that it recites, and is consequently evidence that the provisions of the statute have been complied with, and that the company was duly organized. From the time that such certificate is made, filed, and recorded the association becomes a corporation, or quasi corporation under the statute, possessing all the privileges and competent to exercise all the powers that the statute confers. And from that time every person is precluded from denying its legal or corporate existence in any suit or controversy whatever. The certificate is revocable for fraud in its procurement only in a direct proceeding for that purpose brought by the state.
Additional Syllabus by Editorial Staff.
A "corporation de facto" is one exercising corporate powers under color of a more or less legal organization.
The term "corporation by estoppel" is applied where a person who has contracted or otherwise dealt with a body purporting to be a corporation is, by reason of having dealt with it as such, estopped from denying its corporate existence or the legality of its organization.
Error from Superior Court, Colquitt County; W. E. Thomas, Judge.
J. H. Cason was convicted of embezzlement, and brings error. Affirmed.
L. L. Moore and Shipp & Kline, all of Moultrie, for plaintiff in error.
J. A. Wilkes, Sol. Gen., and W. A. Covington, both of Moultrie, for the State.
Cason was arraigned under an indictment based on section 186 of the Penal Code. A demurrer to the indictment was overruled, and the accused was convicted. He excepted to the overruling of his demurrer and to the refusal of the court in sustaining his motion for new trial. The indictment was in six counts, all in substantially the same language; each count charging the embezzlement of different sums of money. The first count charged the accused with the offense of embezzlement committed on a certain day in Colquitt county, Ga., "unlawfully and with force and arms, and being then and there the cashier and servant at Crosland, Ga., said county, for and in behalf of the Bank of Crosland, a banking corporation and corporate body under the laws of Georgia, and, as such cashier and servant, being then and there in the possession of $15 in money, of the value of $15, belonging to the said Bank of Crosland, a banking corporation and corporate body as aforesaid, as such cashier and servant, and by virtue of his employment by said banking corporation and corporate body, and being charged with the possession, safety, and care of said sum of money, then and there said sum of money he did embezzle, steal, secrete, and fraudulently take and carry away, contrary to the laws of said state, the good order, peace, and dignity thereof." There were 30 grounds of demurrer, several of them general, to the effect that the indictment sets out no offense. It is also complained that the venue of the offense is not alleged; that it does not appear that the accused was either an officer or servant of the bank; that it is not averred that the money came into his hands as an officer or servant of the bank; that it is not averred that the accused was at the time of the alleged embezzlement employed in any station, department, or office of the bank; that it does not appear that the bank was created under the laws of Georgia; that it is not averred that the accused came into possession of the money by virtue of his connection with the bank; that section 186 of the Penal Code is unconstitutional, because it does not have a uniform operation throughout the state, and applies only to a designated class of people, and because it is a special law for which provision had been previously made by the general law on the subject of larceny after trust; that the indictment does not allege in what capacity the accused was charged with possession of the money alleged to have been embezzled; that it fails to show what fiduciary relation the accused occupied to the bank; that it fails to aver that the money belonged to the bank; that it fails to show any conversion by the accused or to aver that he was in possession of the money at the time of the alleged embezzlement; that it fails to aver that either the bank or any other person was damaged by the alleged embezzlement; that it fails to sufficiently describe the money alleged to have been embezzled; that it fails to aver that the accused carried away the money alleged to have been embezzled.
1. The ground of demurrer upon which most stress is laid in the brief of counsel for the plaintiff in error is that the indictment fails to allege a criminal intent. Section 186 of the Penal Code is in the following language:
"Any officer, servant, or other person employed in any department, station, or office in any bank or other corporate body in this state, or any president, director, or stockholder of any bank or other corporate body in this state, who shall embezzle, steal, secrete, or fraudulently take and carry away any money, paper, book, or other property or effects, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor longer than seven years."
Every crime consists in the joint operation of act and intent. Penal Code, § 31. It is therefore essential in every case for the state to prove the criminal intent. It does not follow, however, in all cases that an indictment would be void because it fails expressly to allege the criminal intent. If the indictment employs language from which it must necessarily be inferred that the criminal intent existed, it would be sufficient. The indictment in the present case is in the language of the Code, and expressly charges that the accused did embezzle, steal, secrete, and fraudulently take and carry away the money described in the indictment. This was sufficient. The word "embezzle" itself sufficiently indicates the criminal act. 2 Bishop's Criminal Law, § 379. The word "steal" implies a felonious taking. No person can embezzle or steal the property of another without having the intent to appropriate the property to his own use, and the conversion of another's property by embezzlement or theft amounts to a criminal taking. See 7 Words and Phrases, "Steal." Indeed, it has been held that the word "steal" implies not only a felonious taking, but also the carrying away of the goods, and that the use of the word "steal" in an indictment dispenses with the necessity of alleging that the goods were fraudulently taken and carried away. See State v. Mann, 25 Ohio St. 668; State v. Parry, 48 La. Ann. 1483, 21 So. 30; State v. Boyce, 65 Ark. 82, 44 S.W. 1043; State v. Fitzpatrick, 9 Houst. (Del.) 385, 32 A. 1072; People v. Lopez, 90 Cal. 569, 27 P. 427. Here, however, the indictment expressly alleges that the money was stolen, and that it was taken and carried away by the accused. This was sufficient.
2. Complaint is further made that the court erred in failing to charge the jury that there must have been a criminal intent and erred in refusing to charge that the money must have been taken with intent to steal. The trial judge charged the jury in the language of the indictment and of the statute that, before they could conyict, they must be satisfied beyond a reasonable doubt that the accused did embezzle, steal, secrete, and fraudulently take and carry away the money described in the indictment. As we have seen, this...
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