McGinty v. State

• Decision Date: 17 March 1939
• Docket Number: 27194.
• Citation: 2 S.E.2d 134,59 Ga.App. 675
• Parties: McGINTY v. STATE.
• Court: Georgia Court of Appeals

2 S.E.2d 134

59 Ga.App. 675

McGINTY v. STATE.

No. 27194.

Court of Appeals of Georgia, Division No. 1.

March 17, 1939

Boykin & Boykin, of Carrollton, and Homer A. Glore, of Atlanta for plaintiff in error.

Hal C. Hutchens, Sol. Gen., of Dallas, for defendant in error.

MacINTYRE Judge.

The defendant, McGinty, was indicted under Code, § 26-2804; which declares: "Any county treasurer who shall divert misapply, embezzle, or conceal any money belonging to the county of which he is such county treasurer, with intent to appropriate the same to his own use, shall be punished by imprisonment in the penitentiary for not less than two years nor more than 20 years, and shall be removed from office. On the trial of such defendant, proof of his having failed or refused to make an exhibit to the grand jury of the county of which he is such treasurer, at the superior court first held in each year in said county (unless prevented by providential cause), a full and complete statement of the county's funds, received by him during the preceding year, as required by law, shall be deemed prima facie evidence of guilt, and throw the burden of proof on him. The prosecuting officer shall not be required to identify the money, coin, or bank bills, or other property misapplied, embezzled, or concealed, but an allegation that any sum of money or evidence of debt has been received by the defendant belonging to the county, and that he fails or refuses to account for the same, if proved, shall authorize a conviction, unless the defendant shall set up and sustain a valid and legal defense to the charge." He was convicted, moved for a new trial and to the judgment overruling his motion for a new trial he excepted.

The indictment was demurred to on the ground that it is vague uncertain, and wanting in particularity. The indictment alleges a named date on which the crime was committed and then alleges a violation of the statute by B. M. Styles, the county treasurer, in the language of the Act. Every essential ingredient of the offense is set forth in the indictment. The description of the acts alleged as constituting the offense were full enough to enable the jury, without difficulty, to know what the charge was against the accused, Styles. It affirmatively appeared from the indictment what particular instances were meant and the indictment was sufficient to enable Styles to prepare his defense and the jury to clearly understand the nature of the offense and the indictment is exact enough to protect the accused, Styles, from a second jeopardy. The indictment then charged, "that J. H. McGinty being absent at the time of the commission of the crime aforesaid, in the manner and form aforesaid, by the said B. M. Styles did yet then and there unlawfully and fraudulently procure, counsel and command the said B. M. Styles to commit the crime of embezzlement of county money as aforesaid, ***." The demurrer of McGinty was properly overruled as to him. Hawkins v. State, 58 Ga.App. 386; 198 S.E. 551.

It seems to us that the state was contending that Styles embezzled $1,450.58 and that the defendant, the auditor, had unlawfully and fraudulently procured, counseled, and commanded Styles to commit the crime of embezzling county money. The evidence for the state prior to the instant hereinafter recited tended to show that the defendant, McGinty, had obtained, by a check from Styles, $600 of the said $1450.58 after the latter amount had been taken from the account of Styles as treasurer of the county and placed in an account in another bank in his, Styles', individual name.

The defendant seems to contend that Styles, the treasurer, owed him $200 for some work done for him individually in connection with the audit and that the county owed him, the defendant, $400 for making the audit, but, through some error, the county voucher numbered 840, with red ink notations thereon, which should have been made out to the defendant as auditor, was erroneously made payable to Styles and this was the voucher about which defendant's counsel was endeavoring to cross-examine the state's witness. The defendant contended that the said $600 that Styles subsequently paid him was paid by Styles out of his Styles', individual money and was for the $200 that Styles owed him individually and the $400 which the county owed him and for which the voucher had been erroneously made out to Styles individually instead of to the defendant. The State's witness Styles had already testified that voucher numbered 840 with the red ink notations thereon, which was made out to him, was for the $400 which the county owed the auditor, the defendant, for the audit. However, Styles differed with the defendant as to the circumstances under...