Mccoy v. The Stath Of Ga.
| Decision Date | 28 February 1854 |
| Docket Number | No. 25.,25. |
| Citation | 15 Ga. 205 |
| Parties | Daniel S. McCoy, plaintiff in error. vs. The Stath of Georgia, defendant in error. |
| Court | Georgia Supreme Court |
Larceny, after trust reposed. Tried before Judge Powers, in Bibb Superior Court, November Term, 1853.
The indictment in this case, charged that the defendant, on 1st September, 1853, was intrusted, by Davis Smith, Jr. with a certain bay horse, for the purpose of selling and paying over the proceeds to Smith; that the defendant disposed of the horse for $96, and fraudulently converted the money to his own use, "the said Daniel S. McCoy not having paid to the said Davis Smith, Jr. the full value of the horse aforesaid, contrary to the laws, &c."
On the trial, counsel for defendant moved the Court for a verdict of "Not Guilty", on the ground that no crime was charged in the indictment—the allegation being that the defendant had failed to account for the full market value of the horse, and not for the proceeds of the sale. And because, the averment that he had failed to pay the full market value, was negative pregnant; and that the legal intendment therefrom, was that he had accounted for the proceeds of the sale; and that the State could not, by its proof, contradict that intendment.
The Court over-ruled the motion, and defendant excepted.
The State proceeded to introduce evidence, in support of the indictment, which it is unnecessary, here, to recapitulate.
It appeared that McCoy had left the State and was followed to Kentucky, where two suits were instituted against him, by one Babcock, for himself and others. The written settlement of those suits was placed in evidence by the defendant. On his return from Kentucky, a demand was made upon him for the horse, in Bibb county.
The Court charged the Jury, amongst other things, that if they should be satisfied, from the evidence, that the horse was placed in the hands of defendant, by Smith or his agents, for sale, on account of Smith, and defendant, in pursuance thereof, sold the horse, but converted the proceeds to his own use; and on demand of Smith, failed and refused to account for the proceeds of sale, or the full value of the horse, after the conversion of the proceeds to his own use, then he was guilty. The offence became complete, when he refused to respond for thevalue of the horse. It was his duty to retain the proceeds of the sale and turn them over to his principal. If, however, he converted them to his own use, the law did not regard him as a criminal, if he paid the value of the horse, on demand, after this conversion. Before conversion, he was only bound to pay what he received; after conversion, he was bound for the value of the horse, irrespective of the actual amount received. As to the settlement set up in defence, if the Jury believed that there were other matters in controversy between the parties, which were settled by the agreement in Kentucky, and the claim of the horse was not included in the settlement, of course that settlement would be no defence here. And if the Jury believed, from the evidence, that the value of the horse was demanded here, on defendant\'s return to Macon, it was a sufficient demand.
To all of which charge, defendant excepted.
1st. That the Court erred in charging that defendant was guilty, if he failed to account for the full market value of the horse.
2nd. In not charging, when speaking of the settlement in Kentucky, that if a demand was there made, the offence was then complete.
3rd. In charging as to a demand in Bibb county, when there was no evidence on that point.
4th. In charging that a demand for the full market value, and not the proceeds, was necessary.
On these several exceptions, error has been assigned.
Stubbs & Hill—Hall & Carey, for plaintiff in error.
Sol. Gen'l DeGraffenreid, for defendant in error.
By the Court.—Benning, J. delivering the opinion.
The indictment, in this case, was founded on the thirty-sixth section of the sixth division of the penal code.
That section declares, among other things, that "if any per-son who has been intrusted by another with \'any \'horse\', for the purpose of selling such \'horse\', and paying over the proceeds of such sale to the owner or other person so intrusting or delivering the said" horse, "shall fraudulently convert the said" horse, "or the money or other thing arising from the sale" of "said horse, " to his or her own use, "or shall otherwise dispose of" said horse, "to the injury, and without the consent of the owner or other person so intrusting or delivering" said horse, "and without paying to such owner or person intrusting or delivering the same the full value or market price thereof, such person, so offending, shall, on conviction, be punished by imprisonment and labor in the penitentiary, for any time not less than one year, nor longer than five".
These words make two kinds of acts criminal—First, that in which the party fraudulently converts the article to his own use. Second, that in which he otherwise disposes of the article, but to the injury of the owner, and without his consent, and without paying him the full value or market price of the arti-cle. In the first kind, the crime is complete, as soon as the party fraudulently converts the article to his own use. Nothing more need happen. It is not necessary that he should also fail to pay the owner the full value or market price of the article.
In the second class, in which the article is disposed of otherwise than to the use of the party himself, the crime is not made complete by the mere disposing of the article. To make it complete, three other things must also exist—an injury to the owner—the non-consent of the owner—a failure to pay the owner the full value or market price of the thing disposed of.
This being the law, the indictment charged, that McCoy being intrusted by Smith, with a horse, for the purpose of selling the horse and paying over the proceeds of the sale to Smith, sold the horse for $96, and fraudulently converted the money to his own use. And after doing this, the indictment adds that the matter charged was to the injury of Smith, and was without his consent, and that McCoy had not paid him the full value of the horse.
The trial coming on, under this charge, the State proved by Smith, that McCoy got the horse, and got him for hauling off buggies with, to sell; and that as he, Smith, thought McCoy also had instructions to sell the horse, that Smith had made no demand of McCoy, for the money for which the horse sold.
This proof having been introduced, the defendant moved for a verdict of not guilty, on two grounds: First, that the defendant, if liable at all, "was only liable for the proceeds of the sale of the horse"; whereas, "he was charged with having failed to pay to the said Davis Smith, Jr., the full market val-ue of the horse"; and the failure to pay that, and not the failure to pay the proceeds of the sale, was all that could be proved. Second, that the averment, that "McCoy had failed to pay the full value of the horse, was a negative pregnant"; and that the affirmation with which it was pregnant, was, by legal intendment, this, viz: that he had accounted for the proceeds of the sale; and that this being the legal intendment, it could not be contradicted by proof.
This motion the Court over-ruled. Was it right in doing so? It was.
As to the first ground of the motion—that was not true, in point of fact. It is not true, that the indictment charges McCoy with having failed to pay Smith the full market value of the horse. What is true, is that it charges him with having fraudulently converted the proceeds of the sale to his own use. This is the charge; and the statement in the indictment made after this charge, is stated that McCoy had not paid Smith the full value of the horse, is made as an incident of this charge, and not as, in itself, an independent charge.
As to the second ground. This, as taken, is also not true, in point of fact. If the statement, that McCoy had failed to pay the full value of the horse be a negative pregnant, with any affirmation at all, the affirmation with which it is pregnant, is not the one insisted upon by the defendant, viz: that he, McCoy, had not failed to pay, i. e. had paid the proceeds of the sale to the owner; but this, viz: that he, McCoy had not failed to pay, i. e. had paid to the owner, a value for the horse, but not the "full value".
If this ground were good in point of fact, it would be bad in point of law. . (Arch. Pl. 214.)
"All...
To continue reading
Request your trial
-
Manley v. State, (No. 6160.)
...The requested instruction not being warranted by the evidence, the court was justified in not giving it in charge to the jury. McCoy v. State, 15 Ga. 205 (3); Brock v. State, 22 Ga. 98 (2); Nutzel v. State, 60 Ga. 264 (3). Besides, the court instructed the jury that the failure of the defen......
-
Innes v. State
...stand, simply because the trial court construed the fourth count to have been drawn under the first clause of section 189? In McCoy v. State, 15 Ga. 208, Judge Benning, for the court, in construing the language of this section, said: "These words make two kinds of acts criminal: First, that......
-
Burston v. Caldwell
...Sec. 104, repealed 1966, 81A Georgia Code Ann., Sec. 201(bb). Early cases registered disapproval of granting such motions. See McCoy v. State, 1853, 15 Ga. 205. It was believed that questions of the weight of the evidence were exclusively for the jury's consideration initially. See Manley v......
-
Hamby v. State
...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. [267] 270." See also Sanders v. State, 86 Ga. 717, 12 S.E. 1058. These decisions were dealing with Code Sect......