Carty v. State

106 S.E. 11, 26 Ga. App. 249, 1921 Ga. App. LEXIS 87

• Court: Court of Appeals of Georgia
• Decided: January 28, 1921
• Docket: 11373
• Status: Published

Opinion

Per Curiam.

1. A nolle prosequi as to some of the counts in the indictment works no acquittal, but leaves the prosecution just as though such counts had never been inserted in the indictment. Dealy v. United States, 152 U. S. 539 (1) (38 L. ed. 545) ; Martin v. State, 10 Ga. App. 795 (1) (74 S. E. 304), and authorities cited. See also 20 Standard Enc. Proced. 655(1). Under this ruling the court did not err in permitting counts 2 and 4 of the indictment to be quashed.

2. After counts 2 and 4, which charged simple larceny, were quashed, the remaining counts of the indictment were not subject to the demurrer interposed, and the court did not err in overruling it.

3. The indictment charged the offense of larceny after trust, for that the defendant, “ after having been entrusted by Thomas A. Gary with twelve hundred dollars in money, of the value of twelve hundred dollars, the property of said Thomas A. Gary, for the purpose of applying .the same to the use and benefit of the said Thomas A. Gary, did fraududently convert the same to his own use, ” contrary to the laws, etc. The evidence did not show the trust as alleged, but conclusively showed .that the sum of money turned over to the defendant was to be applied for the benefit of Frank Gary, the son of Thomas A. Gary, to settle some debts and executions against Frank Gary. Therefore, the conviction of larceny after trust is not authorized, because the proof shows that the purpose of the trust was different from that alleged in the .indictment. See White v. State, 19 Ga. App. 230 (3) (91 S. E. 280), and cases cited. For this reason alone the judgment of the court overruling the. motion for a new trial is

Reversed.

Broyles, C. J., and Luke and Bloodworth, JJ.,- concur.