Jackson v. The State Of Ga.

• Decision Date: 31 March 1886
• Parties: Jackson. vs. The State of Georgia.
• Court: Georgia Supreme Court

76 Ga. 551

Jackson. vs. The State of Georgia.

Supreme Court of the State of Georgia

MARCH TERM, 1886.

[ This case was argued at the last term, and the decision reserved.]

[COPYRIGHT MATERIAL OMITTED]

Criminal Law. Embezzlement. Jury and Jurors. Indictment. Practice in Superior Court. Character. Evi-dence. Charge of Court. Before Judge Roney. Richmond Superior Court. April Term, 1885.

Geo. T. Jackson was indicted for embezzlement, and was tried and found guilty. A new trial was refused him, and he excepted. For the other facts, see the decision.

J. C. C. Black; Foster & Lamar; Twiggs & Verdery; A. J. Requier, for plaintiff in error, cited:

On indictment: 50 Ga., 313; 12 Id., 314; 60 Id., 88; 65 450; 57 Id., 67; 46 208; 50 Id., 325; 17 7Id., 356; 24 N. J. L, 924; 19 Am. R., 211; 33 Tex., 792; 9 Biss., 429, (S. C, 12 Myer's Fed. Dec., 2231); 8 Mete, 217; Thomp. Lib. Off, 492; Code, §4421; Cobb's Ten. Code, p. 99; 10 Wall., 152; 4 Otto, 343; 20 C. L. J., 36; 2 Russ. Cr., 172; 2 Arch. Or, Pl. and Pr., 283, 298, 353, 560, 1147; 2 Bish., 352; 2 Whart. Cr. L., 1941, 1818; 9 Gush., 284; 116 Mass., 1; 97 Id., 584; 99 Id, 42S; 1 Denio, 120; Desty, 146(a); 2 Bish. Cr. L, 828, 368, 480; 11 Humph., 39; 6 Ala., 845; 12 Am. R, 314; 21 Id., 175; Code, §4714; 68 Ga, 367; 58 7, Id, 332; 65 Id., 410; 2 Hawkins P. C, §62; 1 Chit. Cr. L., 231; 1 Denison's C. Cas., 465; 1 How. (Miss.), 260; 1 Eng. (Ark.), 165; 2 Tex. A pp., 4; 2 Leach, 592, 659; 2 Shower, 472; 33 Ala., 389; 2 Hawkins, 184; 101 Mass., 32; 3 Ga., 540; 1 Bish. Cr. Proc, 520, 320; Hale's P. 0, 183; 1 Porter (Ala.), 124; 9 Mete, 134; 37 Tex, 360; 72 N. Y., 349; Whart. Cr. Pl. & Prac, 215; 69 Ga., 826.

On the pleas in abatement: Acts 1876, p. 345; Code, §§5233, 4250, 3910; 70 Ga., 191; 39 Id., 118; 7 Id., 142; 53 Id., 602, 443; 63 Id., 165, 397; 58 Id., 332; 2 Arch. Cr. PI. & Pr., 583, 1357; 2 Russ. Cr., 189, 468; Roscoe's Cr. Ev, 451; 65 Ga., 449; 3 Id.34, 146; Sedgw. St. & Com. L., 267; 8 Ga., 28; 24 Hun, 501; 69 Ga., 73; 71 Id., 283.

On admission of evidence: Whar. Cr. L., 283; 2 Russ. Cr.. 772; 4 N. Y., 110; 1 Park., 252; Code, §3757; Whar.

Cr. PI. & Prac, §110; 45 N. Y., 157; 12 Cush., 272; 2 Va. Cas. (Brock), 306; 1 Leach C. L., 253; Ib., 518, 351; Russ. & Ry. C. G, 358; 2 East C. L, 514; 58 Ga., 280; 22 77, 449; 16 Tex., 241; 33 Id., 107; 18 111., 52; 5 Taunt., 814; 63 Ala., 83; 57 Iowa, 58; 61 Ind., 447; 2 Tex. App., 228; 7 S.C., 469; 10 East, 83; 1 Morris, 141; 18 Mo., 320; 67 Id., 127; 28 Ala., 53; 24 111., 692; 7 Blackf., 324; 3 Brews., 350; 65 Ind., 460; 57 Id., 109; 61 Id., 447; 4 Tex., 228; 1 Chitty, 216; Addison, 141; 7 Ind., 659; 6 Mod. R., 168; 4 Rich. (S. C), 297; 43 Tex., 577; 7 Ga., 294; Id., 418; 1 Pick., 337.

On charges and refusals to charge: 50 Ga., 591: 64 Id., 63, 449; 68 77, 818; 60 Id., 185; 62 Id., 365; 63 77., 459; Code, §3248; 46 Conn., 385; 66 Ga., 315; 59 Id., 787; 19 Id., 102; 10 Id., 106; 3 Gr. Ev., §25; Whar. Cr. Ev., §67; Bish. Cr. Proc, §§1115, 1051, 1060; 7 C. &P., 67.; Russ. Cr., 785; Dickin, Quar. Ses., 563; 85 N. Y., 373; 2 Keyes, 373; 5 Jones (N. C), 65; 47 Ala., 603; 44 Cal., 288; 28 Id., 396; 4 Park. Cr., 481; 91 Pa. St., 145; 16 N. Y, 507; 56 Id., 315; 6 McLean, 342; 2 Brewster, 404; 19 O. St,, 264; 22 Id., 477; 17 Mich., 9; 34 111., 516; 48 Iowa, 583; 50 Id., 194; 49 77., 158; 54 Ind., 400; 3 Strohh., 517; 50 Ala., 134; 52 77, 411; 52 Mo., 251; 65 Ga., 149, 598, 642; 56 77., 633;. 48 Ind., 473; 50 Ala., 139; 21 Id., 218; 30 77., 28; 37 Miss., 327; 46 77., 274; 19 Cal., 166; 58 Ga., 38; 69 77, 439; 67 77, 767.

Boykin Wright, solicitor general; J. B. Cumming; j. S. & W. T. Davidson, for the state, cited:

On demurrer to indictment: Code, §§4421, 4628, 4665_;

10 Ga., 47, 511; 50 77, 313; 1 Bish. Cr. Proc, §§397, 398' 337, 323, 320, 319, 180, 496-513; L. R 1 CC., 172;

11 Cox. C. C, 234, 526; Dears., 188; 2 Arch. Cr. PI. & Pr., pp. 1357, 1356, 1341, 1353, 1355; 3 Jac. Fish. Dig., §§3174, 3175; 12 Cox CC, 96; 1 C. & P., 313, 454; 4 Zab. (N. J.), 9: 64 Ga., 61; Hopk. Pen. Code, §§1154, 1168, 2278; 118 Mass., 443; 18 O. St., 496, 513.

On the pleas: Code, §4649; 70 Gct., 144; 53 Id., 602; 75 Id., 747; 71 Id., 283; 62 Id., 368; 56 Id., 463.

On motion for new trial: Acts 1S73, p. 173; 1 Bish, Or. Proc, §§682, 328, 189, 251; Arch. Cr. PI. & Pr., pp, 244, 365, et seq.; 26 Ga., 611; 58 Id., 577; 10 Id., 47; 18 O.. 497; 118 Mass., 443; Wart. Or. L., 1063; Hopk. Pen. L. §515; 3 Gr., Ev., §25; 19 Id., 102, 120; 61 Id., 294.

Hall, Justice.

George T. Jackson, who, as president of the "Enterprise Manufacturing Company, " was entrusted with and had control of the funds belonging to that corporation, was convicted of embezzling, secreting and stealing one hundred and seventeen thousand six hundred and sixty-seven dollars and twenty-four cents of the same, on an indictment framed under section 4421 of the Code, and which alleged, in substance,

" That the said George T. Jackson, in the county aforesaid, on the first day of November, eighteen hundred and eighty-two, being then and there 1 resident of The Enterprise Manufacturing Company, a corporation and corporate body under the laws of Georgia, and located in said county and state, and as such president, having the general management of the business and the control of the funds of said company, and having in his trust, custody and control large sums of money belonging to said The Enterprise Manufacturing Company, to-wit: One hundred and seventeen thousand six hundred and sixty-seven ²⁴/₁₀₀ dollars, and by him deposited in the Bank of Augusta and in the Commercial Bank of Augusta, corporations under the laws of Georgia, subject to the check of the said George T. Jackson president as aforesaid, and entrusted to the said George T. Jackson, as president aforesaid, to be applied for the use and benefit of said company only, did then and there embezzle, steal, secrete, fraudulently take and carry away the said sum of one hundred and seventeen thousand six hundred and sixty-seven ²⁴/₁₀₀ dollars, of the value of one hundred and seventeen thousand six hundred and sixty-seven ²⁴/₁₀₀ dollars, of the property of the said The Enterprise Manufacturing Company, by receiving and depositing said money as aforesaid in the banks aforesaid as president aforesaid at divers times and in divers sums, and thereafter, at divers times and in divers sums, checking out the same as president and converting it to his own private use, and by causing to be made in the booksof said company, then and there, false entries to conceal and secrete said embezzlement of said money.

"The following is a list showing, so far as the same is known to this grand jury, the numbers, amounts and dates and orders of the checks signed by the said George T. Jackson, president, and on which the aforesaid money or part thereof was drawn by the said George T. Jackson and by him applied to his own use fraudulent y, and by him embezzled, secreted and stolen as aforesaid. (Here follows a list of the checks, numbering three hundred and two, and covering a period of time from Juno 7th, 1879, to October 23d, 1882.)

"And the grand jurors a for said, on their oaths aforesaid, do further say, that so many of the acts herein alleged as are indicated by checks herein described and bearing date not within the statute of limitations of four years were unknown until a very recent date, to-wit: until on or about the first of September, 1884.

"Wherefore, the grand jurors aforesaid, in the name and behalf of the citizens aforesaid, and on their oaths aforesaid, do charge the said George T. Jackson is guilty of the offense of embezzlement aforesaid in the manner and form aforesaid."

Defendant, on being arraigned, demurred to the indictment upon the following grounds:

(1.) Because said indictment in a single count joins more than one offense committed at different times, and of more than one kind of property at different times.

(2.) Because there is no allegation in said indictment by whom the property alleged to have been embezzled was entrusted to said George T. Jackson; nor that he received the same by virtue of his office as president of said Enterprise Manufacturing Company.

(3.) Because the facts charged in said indictment do not constitute the offense of embezzlement.

(4.) Because there is no such crime or offense under the laws of Georgia as embezzlement.

(5.) Because there is no sufficient description nor specification in said indictment of the property alleged to have been embezzled.

(6.) Because material allegations in said indictment are in the alternative.

(7.) Because said indictment is bad for repugnancy.

(8.) Because said indictment does not state the offenseand the time and place of committing the same with sufficient certainty.

(9.) Because said indictment does not charge the offense in the terms and language of the Code of the State, nor so plainly that the nature of the offense charged may be easily understood by the jury.

(10.) Because some of the acts in said indictment alleged as constituting the said offense of embezzlement are barred by the statute of limitations in such cases made and provided.

(11.) Because said indictment is loose, vague, indefinite, uncertain and contradictory, all of which he is ready to verify.

Which demurrer, after argument, was overruled by the court upon each and every ground.

Defendant then filed pleas in abatement, which were also overruled, but which, in most instances, it will suffice to state generally, as the questions made by several of them had been recently decided adversely to him in other cases brought to the same term of this court, and which will be hereafter more particularly referred to. These were properly abandoned on the hearing. Three of them, viz., two in relation to disqualified grand jurors, and one in reference to entering a nolle prosequi and preferring another indictment after demand for trial had been made upon the former, were disposed of upon general and the remaining one upon special de...