Fuller v. State

73 Ga. 408

• Court: Supreme Court of Georgia
• Decided: September 9, 1884
• Status: Published

Opinion

Jackson, Chief Justice.

The defendant, the tax collector of Habersham county, was presented by the grand jury for the offense of embezzlement, in that he had collected taxes due the county in money, and had appropriated the same to his own use. On the issue of his guilt or innocence of this crime, the jury found him guilty. Thereupon he made a motion for a new trial; it was overruled, and he excepted.

The grounds of the motion are as follows in substance: First, that the verdict is contrary to law, and without evidence to support it; and secopdly, that the court erred in charging to the effect that, if the defendant, in his exhibit to the grand jury, showed an indebtedness to the county on account of taxes collected and not paid, then the presumption of law is that the deficit unpaid was in money, because the law required its collection in money, and that the burden was on him to show, by his own or the state’s witnesses, that it was not collected in money ; and also to the effect that it is his duty to collect the county tax in money and nothing else, unless authorized by the county authorities to receive something else, and that they cannot authorize him te receive anything else but scrip issued to jurors, and that only for the taxes of the year during which the jury scrip was issued; and thirdly, that one juror was not sworn.

1. The case appears to us to be quite close from the facts this record discloses. Upon another hearing, the evidence of his guilt may be brought out more clearly or his innocence become more manifest upon a fuller investigation. That he was in default to the county quite a large sum is clear. If he appropriated any of that to his own use 'in any way whatever — if he took the money he collected, and with it speculated upon jury scrip, and then made up the deficit, which he had in money once, with that scrip, procured at a discount, he is guilty. If he so made up any part of the deficit, he is guilty. If, before the deficit was made known to the jury, he had collected money from the people and turned it into scrip to make payment, buying the scrip at a discount, he is guilty. If, after having .collected money for the county taxes, he bought up with it county orders and passed them to the county authorities, or their attorney or collecting officer, in lieu of money .collected for taxes, which he had appropriated to buy these orders at a discount, he is guilty. In one word, if he used money collected as county taxes in any way whatever for his own profit of any sort, he is guilty. But if he did not collect any money at all for the county, but waited on the people and had executions issued and not collected, oír waited on them without' issuing execution, and all the deficit which he acknowledged arose from this failure of duty, .then, while guilty of another grave offense, he would not be guilty of this. He must have collected some money for the county and used it for his private purposes, to be guilty of this offense under this presentment. Whether or not he has done so, we repeat, is not as clear as is desirable in criminal cases. It is close. It may be made clearer one way or the other. So that if there be any error of law in the charge, the case should be tried again.

2. Inasmuch as the collection of some of this deficit in money was a vital question in this case, in order to show guilt, any charge of the court thereon, to (he prejudice of the defendant, if erroneous, ought to work a new trial in a close case. By the act of 1872, codified in section 519, it is declared that “ it shall be the duty of the tax collector to receive jury certificates, when properly authenticated, as far as they will go, towards paying the county tax of the person holding the same, for all taxes due by the taxpayers of this state, to their respective counties.” Nothing is said here about the county authorities authorizing the tax collectors to receive them ; it is the duty of the tax colectors to receive them when offered, if properly authenticated. So that the court erred on this point.

Further, if it be his duty to receive them, these .certificates are as good as money to pay county taxes, and the presumption is, not that the entire deficit was in money; nor was the burden cast on the tax collector to remove this presumption, because it did not exist; nor does the the statute confine the juror to the year he serves and gets his certificate as that only in which he can pay taxes with it, as we read it.

Besides this general act of 1872 in the Code, there is a local act for Habersham county, on page 169 of the acts of 1869, to the same effect. In it the treasurers of White and Habersham counties (are) authorized and required to receive certificates issued to jurors for services rendered in the courts of said counties, at their full value, for any and all dues to said counties.” In this act also we see no necessity for authority from the .county authorities, or limitation to one year, of the validity of the certificates.

Therefore, we think that the defendant is entitled to a new trial for error of law in these charges of the -court, as we understand them.

The ground in reference to the' fact alleged in the motion that a juror was not sworn in chief is not certified, and cannot be considered.

Judgment reversed.