Wilson v. State, A93A1692
| Decision Date | 01 December 1993 |
| Docket Number | No. A93A1692,A93A1692 |
| Citation | 439 S.E.2d 701,211 Ga.App. 486 |
| Parties | WILSON v. The STATE. |
| Court | Georgia Court of Appeals |
Harriss, Hartman, Aaron, Wharton & Boyd, John L. O'Dell, Rossville, for appellant.
Ralph L. Van Pelt, Jr., Dist. Atty., Michael R. McCarthy, Asst. Dist. Atty., for appellee.
Wilson was convicted of ten counts of theft by taking, OCGA § 16-8-2, and appeals from the entry of judgment on the conviction and the denial of his motion for new trial.
Counts 1 through 4 and 6 through 9 of the indictment alleged that on dates between November 11, 1989 and May 6, 1991, Wilson "being in lawful possession of United States currency received from [eight named individuals], the property of the City of Fort Oglethorpe, Catoosa County, Georgia, with a value less than five hundred dollars ($500.00), appropriate said property with the intention of depriving said owner of said property, said defendant, at the time of the appropriation, being a government employee acting in breach of his duties." Count 5 alleged a value of more than $500 received from another individual. Count 10 alleged that Wilson "between November 11, 1989 to May, 1991, did unlawfully, being in lawful possession of United States currency, the property of the City of Fort Oglethorpe, ... with a value greater than five hundred dollars ($500.00), appropriate said property with the intention of depriving said owner of said property." Counts 5 and 10 did not include the language "being a government employee acting in breach of his duties."
The State's evidence was that Wilson was employed by the Town of Fort Oglethorpe to collect cash bonds and fines; that from the individuals named in Counts 1 through 9 Wilson collected cash bonds or fines, totaling less than $5,000, and appropriated same to his own use; and that the total loss to Fort Oglethorpe was over $56,000. Wilson's statement to the police confirmed that he received and appropriated the cash but believed it was about $10,000 or $12,000.
1. The first enumeration is that the court erred in not granting Wilson's motion for directed verdict on the grounds that there was no evidence showing Wilson had the legal authority to receive the funds he allegedly converted and therefore was in "lawful possession" as alleged in the indictment; there was no evidence to show that the funds converted belonged to the Town of Fort Oglethorpe; and therefore there was a fatal variance between the allegata and probata.
The question for this court in reviewing the denial of a motion for directed verdict under OCGA § 17-9-1 is whether the evidence was sufficient under Jackson v. Virginia, 443 U.S. 307, 310, 99 S.Ct. 2781, 2784, 61 L.Ed.2d 560 (1979); Humphrey v. State, 252 Ga. 525, 527, 314 S.E.2d 436 (1984).
In his motion for directed verdict, Wilson requested the court to take judicial notice of the local laws establishing the Town of Fort Oglethorpe.
The Town of Fort Oglethorpe was incorporated by Ga.L.1949, p. 703 et seq. The act provided for the election of a mayor and aldermen. Sec. 5, p. 707. Further, in Sec. 20, p. 713, the office of "Clerk and Treasurer" was established. It stated that
Section 21 provided for the election of a Marshal who would be the "chief police" and who "shall collect all fees imposed by the Mayor's Court...." Section 23(a) provided for the mayor's court with jurisdiction to try offenders against the laws and ordinances of the town within the corporate limits and, if a State law had been violated, to bind the accused over to the proper court and assess bail. The mayor was to sit as presiding officer 1 and the "Clerk of the town shall act as Clerk of said court and the Marshal or other police officers of said town shall attend said court." Subsection (h) provided that "[s]aid court shall have the power to fix bail, accept bonds for the appearance ... of offenders for trial, and if such offenders shall fail to appear ... the cash so deposited shall be by order of the officer presiding declared forfeited to the Town of Fort Oglethorpe."
Section 27 provided that "the Marshal or other police officer ... shall have the right, power and privilege to release any person arrested ... for an offense against the laws ... of said town upon said person giving bond to be approved by the Marshal or Mayor of said town ... conditioned to pay the obligee ... an amount fixed by the Marshal or Mayor of said town...."
From the foregoing, Wilson argues that the State did not prove he was a person authorized to accept cash bonds and fines and therefore did not prove that he came into "lawful possession" of the cash and that the cash was "property of the City of Fort Oglethorpe."
Land v. State, 103 Ga.App. 496, 497(1), 119 S.E.2d 809 (1961).
All of these cases stand for the proposition that where the political subdivision is not authorized to accept cash bonds it cannot have a property right in that cash it accepts. It is not disputed that Fort Oglethorpe had the authority to accept cash bonds. These cases do not stand for the proposition that cash bonds accepted on behalf of a political subdivision by persons unauthorized to do so by internal authorization are not property of the political subdivision.
Nor do any of the cases cited stand for the proposition that such receipt is not "lawful possession" within the meaning of OCGA § 16-8-2. "Lawful possession" therein simply means that the property did not come into the thief's hands initially by theft. See Lawhorn v. State, 200 Ga.App. 451, 454(1), 408 S.E.2d 425 (1991).
Further, public officials are presumed to do their duty. Thus, the state was entitled to the...
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