Hagood v. State

• Decision Date: 26 October 1908
• Docket Number: (No. 1,377.)
• Citation: 5 Ga.App. 80,62 S.E. 641
• Parties: HAGOOD. v. STATE.
• Court: Georgia Court of Appeals

62 S.E. 641

5 Ga.App. 80

HAGOOD.

v.STATE.

(No. 1, 377.)

Court of Appeals of Georgia.

Oct. 26, 1908.

1. Embezzlement (§ 35^*)—Evidence—Sufficiency.

Where the indictment charges the fraudulent conversion of several sums of money, proof of the fraudulent conversion of one or more is sufficient.

[Ed. Note.—For other cases, see Embezzlement, Cent. Dig. § 58; Dec. Dig. § 35.*]

2. Witnesses (§ 267*)—Cross-examination-Refusal to Allow Abstract Question.

The court did not unduly restrict the right of cross-examination in refusing to allow a purely abstract question on a subject about which there was already concrete and positive evidence.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. §§ 923-930; Dec. Dig. § 267.*]

3. Criminal Law (§ 829*)—Trial—Instructions — Refusal of Requested Charge Covered by General Charge.

Where a request to charge is fully and accurately covered in the general charge, the refusal of the request is immaterial and without error.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dee. Dig. § 829.*]

4. Criminal Law (§ 809*)—Trial—Instructions—Abstract Principles.

A request to charge, although it contains a correct abstract principle of law, is properly refused, where it may be misleading or confusing in its application to the facts of the particular case.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1961-1967; Dec. Dig. § 809.*]

5. Criminal Law (J 829*) — Instructions — "Fraudulent Conversion" — "Taking with Intent to Steal."

The words "fraudulent conversion, " constituting an essential element of the crime of larceny after trust delegated, as defined by Pen. Code 1895. § 194. are synonymous with the words "taking with intent to steal, " in cases of ordinary larceny. Proof of fraudulent conversion necessarily proves both act and intent, or "the union of act and intention, " in the commission of the crime. Where the court repeatedly instructs the jury that the evidence must show beyond a reasonable doubt the fraudulent conversion of the money, or some part of it, which has been intrusted to the defendant, it is not necessary to go beyond the statutory definition of this crime and tell the jury that the appropriation or conversion must be made with intent to steal the money.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.*

For other definitions, see Words and Phrases, vol. 3, p. 2958.]

6. Embezzlement (§ 14*)—Elements op Offense—Intrusting Agent—What Constitutes.

Where a principal intrusts his agent with bills for collection, and the agent collects the bills, the agent is, in legal contemplation, intrusted by the principal with the money collected.

[Ed. Note.—For other cases, see Embezzlement, Cent. Dig. § 13; Dec. Dig. § 14.*]

7. Embezzlement (§ 11*)—Indictment—Conditions Precedent—Demand.

An indictment under section 194 of the Penal Code of 1895 need not allege, and the proof need not show, that any demand was made upon the defendant for the money or property alleged to have been fraudulently converted to his own use.

[Ed. Note.—For other cases, see Embezzlement, Cent. Dig. § 9; Dec. Dig. § 11.*]

8. Criminal Law (§ 776*)—Writ of Error-Harmless Error—Omission to Charge. In the absence of a timely request, it was not reversible error, under the facts of this case, for the court to omit from the charge to the jury specific reference to the effect and weight of proof of good character.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 1838-1845; Dec. Dig. § 776.*]

Russell, J., dissenting.

(Syllabus by the Court.)

Error from Superior Court, Chatham County; P. E. Seabrook, Judge.

George S. Hagood was convicted of a violation of Pen. Code 1895, § 194, providing that, if any person intrusted with any money shall fraudulently convert the same, he shall be punished as therein prescribed, and he brings error. Affirmed.

Garrard & Meldrim, for plaintiff in error.

W. W. Osborne, Sol. Gen., and W. L. Clay, for the State.

HILL, C. J. George S. Hagood was indicted by the grand jury of Chatham county for a violation of section 194 of the Penal Code of 1895. This section reads 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, " etc. The indictment contained 21 counts, varying the charge only in the amount of money alleged to have been intrusted and fraudently converted. On his trial the jury found him guilty, and he thereupon filed a motion for a new trial, based on the general grounds and 11 special grounds. To an intelligent consideration and determination of the questions made in the motion a general statement of the facts proved by the state is necessary:

Hagood was a collector for the Western Union Telegraph Company at Savannah, Ga., and the indictment charges that in this capacity he was intrusted by the company with $365.27 in money, the property of the corporation, for the purpose of applying it to the use and benefit of the corporation by safely keeping the money and accounting for the same and paying it over promptly to the owner, and that, after having been so intrusted with the money for the purposes aforesaid, he did wrongfully and fraudulently convert said sum to his own use; the indictment, as before stated, charging in separate counts the fraudulent conversion of separate amounts, aggregating $365.27. Ha-good's duty as collector for the company was to take the bill or statement of accounts against each customer of the company for telegraphic services and present the bill or account to the customer, and collect the amount due. Sometimes Hagood would copy in his own handwriting these bills or accounts in small pass books or account books like grocers' account books, belonging to a customer. He collected money on the bills or accounts, sometimes receipting on the original bill, and sometimes writing receipts in the customer's pass books, and still again in receipt books or forms disconnected with the bills or pass books. It was his duty, after having collected this money, to turn it in to one Galvin, who was the bookkeeper or cashier of the company. In turning in money so collected, Hagood made in his own handwriting memoranda purporting to show the amounts collected from the various customers who owed the bills given him for collection. The company kept in its Savannah office a record book of bills, with the name of each customer and the monthly bill against each customer. This book was kept by Hagood, who made the entries in it.

The evidence for the state showed the following method of procedure by Hagood: He would present to a customer the correct bill, collect the full amount thereon, and turn a less amount, which less amount would be stated in his memoranda or report of collections as the amount collected, and would be entered by him in the record book of bills as the amount of the bill given him for collection. Thus the money he turned in to Galvin, the cashier or bookkeeper, while less than the amount of the bill given to him for collection and less than the amount actually collected by him, would correspond with the memoranda or report of collections turned in by him to Galvin, the cashier, and would also correspond with the incorrect amount of the bill entered by Hagood in the record book of monthly bills. The amount claimed to have been embezzled by Hagood was in each instance the difference between the amount of the true bill and the amount of the alleged falsified bill entered by Hagood in the record book. To illustrate: Take the first item proved by the state, which is covered by the second count in the indictment; this item being the amount of the bill or account against Duckworth. A bill against Duckworth for the month of May for $11.21 was given to Hagood for collection. He copied this bill in Duckworth's pass book, and in a separate receipt book belonging to Duckworth he receipted him for the amount of this bill, $11.21. Hagood then made a memorandum report of his collections, showing a collection from Duckworth of $4.21, and this $4.21 he paid over to the cashier, Galvin. He entered up in the monthly record book of bills the amount of $4.21 as Duckworth's bill for May. This shows that he collected $7 more than he reported, and more than, according to Galvin's testimony, was turned into the company by him. To cover up this shortage he made a false return of the money collected and made a false entry in the record book of bills.

It is unnecessary to set out each case of shortage alleged and proved by the state. The proof shows 20 instances in all of alleged shortages in collections from eight different customers, covering a period of time from September, 1906, to September, 1907; the method of procedure in these cases being similar substantially to that used by Hagood in the instance of the Duckworth collection. The aggregate amount of shortage did not equal the aggregate amount charged in the indictment; the amount proved by the state being less than $100. When Hagood was charged with the shortage, he denied any shortage, claiming that he had paid every cent collected by him to the company. He had been in the employment of the telegraph company for 10 years, and the company's officers who were witnesses testified that during this time his reputation and conduct had been good.

The defendant introduced no evidence. He made a statement in which he denied his guilt, attempted to explain the apparent discrepancy between the amounts collected by him and the amounts paid over to the company, attributed the apparent shortages in the accounts to the loose and careless manner in which the books were kept by the company, and asserted that four of his friends had paid for him to the ...