Haupt v. State

• Decision Date: 19 July 1899
• Citation: 33 S.E. 829,108 Ga. 60
• Parties: HAUPT v. STATE.
• Court: Georgia Supreme Court

33 S.E. 829

108 Ga. 60

HAUPT v. STATE.

Supreme Court of Georgia

July 19, 1899

Syllabus by the Court.

1. Where an indictment for embezzlement charged that the offense was committed on a named date, and that the accused was then the treasurer of a designated corporation, and it appeared upon the trial that he did not hold such office at the time alleged, the state was not restricted to the day specified in the indictment, but had the right to prove that the accused committed the crime, while such treasurer, at any time prior to the finding of the indictment within the statute of limitations.

2. Even if some incompetent evidence as to a collateral matter be admitted, yet if the legal evidence, wholly disconnected from that not competent, clearly and beyond all reasonable doubt demanded the verdict of guilty, a new trial will not be granted.

Error from superior court, Chatham county; R. Falligant, Judge.

G. W Haupt was convicted of embezzlement, and brings error. Affirmed.

Walter C. Hartridge, for plaintiff in error.

W. W Osborne, Sol. Gen., for the State.

FISH J.

At the December term, 1898, of Chatham superior court, a special presentment was found against George W. Haupt, charging that on September 29, 1898, he, being then the treasurer of the Georgia Pine Railway Company, a corporation of this state did embezzle and steal certain named amounts of money belonging to such company. Upon the trial the evidence disclosed that the accused was treasurer of the railway company from May, 1897, until September 19, 1898, when he ceased to hold such office, and was not afterwards connected with the company. The evidence for the state showed that the embezzlement was not committed on the date charged, but at various times prior thereto, and while the accused was treasurer of the railway company.

1. Counsel for the accused requested the court to charge the jury, in substance, that, time being of the essence of embezzlement, the offense must be charged to have been committed upon a day when the accused was treasurer of the Georgia Pine Railway Company, and that the state must prove the offense to have been committed upon the day alleged that, as the accused was charged with having committed upon the day alleged; that, as the accused was charged with having committed the offense on September 29, 1898, before the jury could convict him they must find that he was upon that date treasurer of the railway company, and did then embezzle the money of the company; and that if he was not treasurer of the company on September 29, 1898, they could not convict him. The court refused so to charge, but, on the contrary, charged, in substance, that the state was not bound to prove the commission of the offense on the date alleged in the presentment, but that the jury might convict if the state proved that the accused at any time within four years prior to the finding of the presentment was the treasurer of the railway company, and while holding such office he embezzled its money. Error was alleged in the motion for a new trial upon the refusal of the court to give the request, and upon the charge given. We do not think the complaint meritorious. The variance between the charge and the proof was not such as might have misled the accused in making his defense, or have exposed him to the danger of being twice put in jeopardy for the same offense. It has often been ruled by this court that the state is not bound to prove the commission of the offense charged in an indictment on the precise date alleged therein, but may prove its commission at any time within the statute of limitations next preceding the date of finding the indictment. Therefore, when the presentment in this case charged that the accused, on the 29th of September, 1898, being then and there the treasurer of the Georgia Pine Railway Company, etc., did then and there embezzle and steal, etc., the legal effect of such a charge was that the accused on the 29th of September, 1898, and on every other day within four years next preceding the finding of the presentment, being then and there the treasurer of the Georgia Pine Railway Company, etc., did then and there embezzle, etc. If, on the trial of one indicted for selling liquor without a license, it appeared that the accused had a license on the date alleged in the bill, we apprehend that the...