Cody v. State

• Decision Date: 21 January 1897
• Citation: 28 S.E. 106,100 Ga. 105
• Parties: CODY v. STATE.
• Court: Georgia Supreme Court

28 S.E. 106

100 Ga. 105

CODY v. STATE.

Supreme Court of Georgia

January 21, 1897

Syllabus by the Court.

1. A bill of indictment charging the accused with larceny after a trust delegated, in that he, being intrusted by the prosecutor with money for the purpose of holding and keeping the same for the bailor, fraudulently converted the same to his own use, sufficiently sets out an offense in contemplation of the statute, and contains sufficient grounds to show a delegated trust. It is not necessary that any other disposition of the money be alleged than its fraudulent conversion by the bailee to his own use.

2. Where the money 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," the description is sufficient.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Pearce Cody was indicted for larceny after trust, and interposed a demurrer to the indictment. There was a judgment overruling the same, and he brings error. Affirmed.

John R Cooper, for plaintiff in error.

Andrew W. Lane, Sol. Gen., for the State.

LITTLE J.

The 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, on the 21st day of September, in the year 1896, in the county aforesaid, did then and there unlawfully, after having been intrusted 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 Bob 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 bill of indictment. (3) That said bill of indictment does not show how the property was disposed of, but 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 intrusted 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 true 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 (section 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 any other bailee with whom any money or anything 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 to 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 own 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 acts is made a distinct offense, punishable as provided in the section. McCoy v. State, 15 Ga. 205; Soule v. 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 to or deposited with him. The bill in this case distinctly charges that plaintiff in error, having been intrusted by the prosecutor 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...