Hays v. State

40 S.E. 13, 114 Ga. 25, 1901 Ga. LEXIS 545

• Court: Supreme Court of Georgia
• Decided: November 5, 1901
• Status: Published

Opinion

Fish, J.

E. L. Hays was convicted of embezzlement. He excepted to the overruling of a demurrer to the indictment, and to the judgment overruling a motion for a new trial. The indictment and demurrer are set out in the reporter’s statement.

1. There was no error in overruling the demurrer upon the general ground, as the indictment unquestionably charged the accused with the commission of the offense of embezzlement under section 188 of the Penal Code. There is no merit in the special ground of the demurrer, that the indictment does not charge that the accused was employed in any department, station, or office “in the house of, or place of business of, the corporation of the Whitley Grocery Company, but that he was a traveling salesman of said corporation.” Under the provisions of the section of the Penal Code above referred to, “if any officer, servant, or other person employed in any department, station, or office in any bank or other corporate body in this State . . shall embezzle, steal, secrete, or fraudulently take and carry away any money,” etc., belonging to such corporation, he shall be guilty of the offense o'f embezzlement; and it is clear that, to constitute the offense, such officer, servant, or other employee need not be employed “in the house of,or place of business of, [the] corporation.” The statute was intended to include all employees of such corporations who should commit the offense in this State, without reference to the particular place where their duties were performed.

Nor do we think the indictment bad in that it failed to allege from what person Hays collected the money for the Whitley Grocery Company, which he is charged with having embezzled. In support of this ground of the demurrer, plaintiff in error relies upon Hoyt v. State, 50 Ga. 313. It was there ruled that under an indictment charging the accused with having received a certain sum of money to be applied for the use or benefit of the bailor, and that on a certain day.he fraudulently converted a specific portion thereof to his own use, evidence was not admissible that he had reported to the bailor special payments as made to particular persons, and that such payments had not in fact been made in the amounts so reported, or that no such persons ever existed. It was held that each of such fraudulent acts would be a crime, and proof thereof would be sufficient to sustain a conviction; and that the indictment should contain specific charges of such acts, to authorize the admission of evidence showing that they had been committed. It will be readily seen that the point there decided was entirely different from the one presented by the ground of the demurrer we are now considering. The question here is, whether- it was necessary for the indictment to set out the names of the persons from whom the accused received the money alleged to have been embezzled by him, while there it was decided that evidence of the commission of an offense not charged in the indictment was not admissible. In 7 Encyclopaedia of Pleading and Practice, 424, it is said: “ . . where property has been received from others than the defendant’s employer, by virtue of his employment, it is sufficient to allege that the defendant, while he was employed, etc., did, by virtue of his employment, receive and take into his possession, etc., in the name and on account of his employer, without naming the persons from whom the property was received; ” and the text is sustained by State v. Lanier, 89 N. C. 517, State v. Broughton, 71 Miss. 90, and State v. Flint, 62 Mo. 393, which are cited. See Jackson v. State, 76 Ga. 574; Brown v. State, 18 Ohio St. 506. Nor was it necessary for the indictment to state “ the nature and character of the alleged false and fraudulent reports,” as these were simply evidence of the commission of the offense.

2. The proposition stated in the second headnote has been so frequently ruled by this court that citations of the decisions are not necessary.

3. In the motion for a new trial error is assigned upon the failure of the court to refer to the prisoner’s statement while instructing the jury as to reasonable doubt. This assignment of error is without merit. The exact point was made and ruled upon in Vaughn v. State, 88 Ga. 731, where it was held: “The general tenor of the charge of the court on the trial of a criminal case should be shaped by the evidence alone and the law applicable thereto, adding, or at some stage of the charge incorporating, the statutory provisions touching the prisoner’s statement, and in case of special request to charge on the statement, granting such request if the matter requested be appropriate.” This ruling has been approved and followed in Miller v. State, 94 Ga. 1, Lacewell v. State, 95 Ga. 346, Sledge v. State, 99 Ga. 684; Hoxie v. State, ante, 19. It appears from the record in the present case that the jury was fully and correctly instructed as to the statutory provisions in reference to the prisoner’s statement, in another portion of the charge.

4. The motion for a new trial complains that several designated portions of the charge were erroneous, because the judge failed to give, in connection therewith, other specified legal propositions, alleged to be appropriate. This court has several times ruled that an exception to a correct charge, because of failure to give, in the same connection, some other pertinent legal proposition, is not a good assignment of error. Keys v. State, 112 Ga. 392, and cases cited.

5. The evidence warranted the verdict, and there was no error in refusing to grant a new trial.

Judgment affirmed.

All the Justices concurring.