Silvers v. State, 32433.

• Decision Date: 12 May 1949
• Docket Number: No. 32433.,32433.
• Parties: SILVERS. v. STATE.
• Court: Georgia Court of Appeals

53 S.E.2d 388

79 Ga.App. 223

SILVERS.

v.STATE.

No. 32433.

Court of Appeals of Georgia,

Division No. 2.

May 12, 1949.

Syllabus by the Court.

In the trial of one accused of larceny after trust, the evidence, to warrant a conviction, must prove the trust as laid. The conversion of property which was temporarily loaned to another for his own use and not for the use or benefit of the owner or some other person, is not such an en-trustment as will support a conviction for larceny after trust.

Error from Superior Court, Gordon County; J. H. Paschall, Judge.

Floyd Silvers was convicted of larceny after trust, and he brings error.

Reversed.

The defendant was convicted for larceny after trust. Omitting the formal parts, the indictment alleged: "In the name and behalf of the citizens of Georgia, charge and accuse Floyd Silvers with the offense of larceny after trust. For that the said Floyd Silvers on the 12th day of April, in the year 1947, in the county aforesaid, did then and there, unlawfully and with force and arms, after having been entrusted by W. M. Hammond, the owner, with one 1941 model 1¹/₂ ton Chevrolet truck for the purpose of hauling lumber with said truck, did falsely and fraudulently convert said truck to his own use and did otherwise dispose of same without the consent of the said Hammond, and did thereby injure and damage said Hammond in the sum of $500.-00 the reasonable value of said truck to the injury and damage of said Hammond in said sum." He filed his amended motion for a new trial, which was overruled. He assigns error here on the overruling of his motion. The prosecutor, W. M. Hammond, testified in part that he let the defendant have a 1941 model 1¹/₂ ton Chevrolet truck, together with a little saw mill and a tractor. The timber the defendant was cutting was on his brother's place. The witness told the defendant that when he finished cutting the timber he wanted the mill and tractor brought down to Plains-ville. This was about the middle of theweek. The following Monday the witness went to the mill site and the tractor was gone. He looked for the defendant and the defendant was gone. He never did find him. He never did find the 1941 1¹/₂ ton truck. It was gone. "This truck that I let him have, as to whether or not I just let him have it to finish cutting that stand of timber: Well, he had been using it and I just let him keep it on up there until he got through. I have not gotten that truck back. As to when I ever saw Mr. Silvers again, well, I have never talked with him about it, I didn't see him any more from the day I was up there and talked to him until he was here at the last term of court. I don't know where he was in the meantime. I do not know where he was any of that time." On cross-examination the same witness testified: "I said a while ago that Floyd Silvers asked me for my truck and tractor to take up above Red Bud to cut some timber, and I allowed him to take the truck and the tractor up there to cut some timber. He was going to sell the lumber to me. No, he didn't sell the lumber to me. As to whether or not I refused to buy it, well I went up there and he wanted me to pay him for about twice as much as he had cut, and he said he couldn't come out. I believe it was $35.00 he was going to get for it, at that time I was selling lumber for about $37.00, or $38.00, so I told him he could just go ahead and make other arrangements and sell it somewhere else; he said he had a place where he could get more money for it. Yes, I just loaned Floyd my truck and mill to go up there and cut that timber, and all the time that he had the truck and the saw mill up there he was using it for himself." (Italics ours.) With the evidence of this witness in, the State rested its case. The defendant put in evidence the testimony of Charlie Patterson, who testified substantially that he was present when the prosecutor, Hammond, sold the truck in question to the defendant for $1000.00 on credit.

The defendant then made a statement as follows: "I was living on Lawyer Lang's place cutting timber for Cliff King, and Mr. Hammond came over after me. He was cutting this wind mill, that oak stuff down in the pasture. He kept on until I went down there and I had a jeep then. I had bought it from Cliff King. Well, he wanted me to move over there to Scottsville and I moved over there in one of his brother's houses, and stayed over there and drove my jeep backwards and forwards and hauled his men in the jeep, some of them back and forth to work as long as I kept it. And he wanted to sell me the truck and that is when I bought the truck. While I lived over there I hauled one set, one bit set of his logs and the next set, I cut it and we logged it, and when we went to settle up I had $50.00 coming on this set, and he took the $50.00 on what I owed him and put it on the books, the ones I told him to bring in, and he knows that he put it on the books. I was standing right there when he did it. I went on up here then and I had bought the saw mill from him and moved it up younder to cut some timber. And I was going to sell him the lumber and I went down there for a pay day. I went down there and he wasn't there. Mr. Hammond was there, and I never got no pay day, and I told him I would have to pay my men. I went back to my brothers and came on back and the next morning I came up...