Mcnish v. State

• Decision Date: 11 January 1892
• Citation: 14 S.E. 865,88 Ga. 499
• Parties: McNish v. State.
• Court: Georgia Supreme Court

14 S.E. 865

88 Ga. 499

McNish

v.State.

Supreme Court of Georgia.

Jan. 11, 1892.

Larceny—Fraudulent Conversion.

Where, according to the usual course of business of a partnership, which transacted a wharfage business for itself, and represented a transportation company in the collection of freights, a clerk of the partnership was in the habit of delivering bills of lading to customers, and receiving from them checks in prepayment of bills for freight and wharfage, and, acting in conformity to this custom, such clerk received a check from a customer, payable to the order of one of the partners (agent) or bearer, collected the money, and fraudulently converted the same to his own use, he was not guilty of the statutory offense of larceny after a trust dolegated, upon an indictment charging that he was intrusted by the customer with the check to be applied for the customer's use and benefit, the trust created by the transaction as a whole not being one between the customer and the clerk, but one between the partnership and the clerk. The delivery of the check, and the collection of the money upon it, operated as a payment of the bill against the customer, and furnished a fund for which the clerk was accountable to his employers.

(Syllabus by the Court.)

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

Indictment against A. M. McNish for larceny. From a judgment on conviction defendant brings error. Reversed.

C. N. West, for plaintiff in error.

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

Bleckley, C. J. By disposing of the general grounds in the motion for a new trial, all the special grounds, in so far as they are verified by the presiding judge, will be ruled incidentally. They will need no separate discussion. The indictment being for larceny after a trust had been delegated, in order to convict the accused it was necessary to prove the creation of the trust described in the indictment, and a fraudulent breach of it in the manner alleged. To charge one trust and prove another would not suffice. Carter v. State, 53 Ga. 326; McCrary v. State, 81 Ga 334, 6 S. E. Rep. 588. The indictment alleges that McNish was intrusted by Raymond Judge with a certain check drawn by Judge on a bank, and made payable to the order of William E. Guerrard, agent, or bearer, "for the purpose of applying the same for the use and benefit of said Raymond Judge, "etc. By the evidence it appears, either directly or by fair inference, that Guerrard, the payee of the check, was a member of the firm of James B. West & Co., a partnership which transacted a wharfage business for itself, and...