Land v. State
| Decision Date | 11 April 1961 |
| Docket Number | No. 38827,No. 2,38827,2 |
| Citation | 103 Ga.App. 496,119 S.E.2d 809 |
| Parties | F. L. LAND v. STATE |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. An entity with the right of possession of property to the exclusion of all others, including the true owners, may be alleged as owner of the fund in an indictment for embezzlement. Where cash bonds are illegal, the governing authority has no title, right, or interest therein, but where their acceptance has been legalized under Code § 27-508 they must be paid over to the proper county officer, to be held until the trial of the case, after which the cash bond is either returned to the true owner, who thus regains his right of possession, or paid into the county treasury, subject where the county is on the fee system to the liens of officers having a right to participate in the distribution thereof. This indictment for the embezzlement was not duplicitous, nor was it subject to demurrer on the ground that Franklin County was improperly alleged to be the owner of the fund.
2-4. The remaining special demurrers to the indictment are also without merit.
The defendant Fred Land was indicted in the Superior Court of Franklin County on nine counts of embezzlement, each count alleging in substance that the defendant, being Sheriff of Franklin County and having been authorized by order of the judge of the court of ordinary of said county to accept cash bonds for the personal appearance of persons arrested for traffic violations, did embezzle, steal and fraudulently take and carry away a named sum 'in money, vouchers, and checks, in the denominations and forms and of other description to the grand jurors unknown, belonging to Franklin County,' which came into the defendant's possession by virtue of his official position, and being a cash bond for the appearance of a named person in the court of ordinary to answer for the violation of a traffic law, said sum belonging to Franklin County.
The defendant filed numerous general and special demurrers to the indictment, the overruling of which is assigned as error.
Kimzey & Kimzey, Herbert B. Kimzey, Cornelia, for plaintiff in error.
Clete D. Johnson, Sol. Gen., Royston, Andrew J. Hill, Lavonia, A. S. Skelton, Hartwell, for defendant in error.
1. It is contended that the indictment, construed against the pleader, shows that the allegation that the fund in question 'was the property of Franklin County' is an untrue allegation of ownership with the result that the indictment, not containing a proper allegation of ownership, is subject to general demurrer; also that if the ownership of the fund is assumed under the allegations of the indictment to rest in the individual putting up the money as a cash bond, the offense would be larceny after trust and each count of the indictment is accordingly subject to special demurrer as being duplicitous.
The indictment is drawn under Code § 26-2801 which provides that an officer of a county who embezzles, steals, secretes or fraudulently takes and carries away any money or other property shall be guilty of a felony. Embezzlement is a species of larceny; any legal interest in the property wrongfully converted, although less than the absolute title, will support an allegation on ownership, but there must be an actual legal interest, not a mere claim or expectation of interest. Scarboro v. State, 207 Ga. 449(2), 62 S.E.2d 168 Where cash bonds are not lawful, the political subdivision can have no title to or legal interest in the property. Holt v. State, 11 Ga.App. 34, 74 S.E. 560; Washburn v. Foster, 87 Ga.App. 132(1), 73 S.E.2d 240; Scarboro v. State, supra. It was, however, lawful for this defendant to accept cash bonds. Code § 27-508. He did so by virtue of his position which was that of an officer of the county. Code § 34-2601. The fund should have been turned over to the clerk of the court of ordinary, or the ordinary. Code § 27-509. Such clerk is also a county officer and has the duty of preserving the fund represented by the cash bond until after final disposition of the case. If the defendant is acquitted the bond is of no force and effect; the money, therefore, should be returned to the defendant. If he fails to appear, the money goes into the fine and forfeiture fund. Code § 27-511. In such case, Franklin County being on a fee system, the clerk, after paying out the legally allowed claims due officers in the particular case, has a duty to pay over the amount of the fine into the county treasury to be kept in the fine and forfeiture fund; the surplus, if any, ultimately goes into the general county fund for specified purposes. Code Ch. 27-29. It was settled in Banks County v. Stark, 88 Ga.App. 368, 373, 77 S.E.2d 33, that after payment of the allowed expenses of the officers bringing the fund into court, the county was the proper party to seek recovery of any sums not paid over to the county treasury, and that the county officers do not lose their lien on the fund although it is paid over to the county treasury.
In the present case we are met with the allegation that Franklin County is the owner of the fund represented by the cash bonds in question, which must be taken as true on demurrer. Under the Stark case, the county, whenever conditions are such that the money should rightfully be placed in the county treasury, has such a legal interest therein, subject to the liens of the officers bringing in the fund, as will allow it to bring...
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