Jackson v. State

223 S.E.2d 239, 137 Ga. App. 192, 1976 Ga. App. LEXIS 2380

• Court: Court of Appeals of Georgia
• Decided: January 6, 1976
• Docket: 51210
• Status: Published

Opinions

Stolz, Judge.

This is an appeal from defendant Jackson’s conviction of theft by conversion in failing to pay for construction materials used to build swimming pools for his customers. When the customers, prosecutors in this action, paid the defendant for their pools, they did so with the understanding that Jackson would pay for all labor and materials used. Jackson admits this and also admits that it is he, not his customers, who is indebted to the supplier. Yet defendant Jackson failed to pay for the materials used and consequently, the supplier placed a materialman’s lien on the real estate of the two customers.

1. Appellant first enumerates as error the trial court’s failure to dismiss the charges, claiming that theft by conversion under our statute (Code Ann. § 26-1808) is unconstitutional insofar as it provides for imprisonment for debt. This argument is controlled by Smith v. State, 229 Ga. 727 (194 SE2d 82), wherein the Supreme Court upheld the statute, interpreting it as creating a form of larceny after trust. This contention is therefore without merit.

2. The essence of this case is fraudulent intent, for that distinguishes theft by conversion from a simple breach of contract. The fact that the prosecutors may have a civil remedy under Code Ann. § 67-2001 (2) is of no consequence in this criminal action. Witness the availability of both civil and criminal actions for assault and battery, for wrongful death and homicide, and for trover and fraudulent conversion. The criminal statutes are not superfluous but rather, are designed to satisfy a different purpose than restitution to the prosecutor, which is accomplished through a civil suit.

The evidence in this case showed that the defendant contracted to build swimming pools at stipulated prices, that the contracts contemplated the defendant’s being responsible for paying the costs of labor and materials, that in one case the defendant agreed in writing to be responsible for these costs, that the defendant had been fully paid by his customers, but had failed to pay his supplier in turn, and that the supplier placed liens on the customers’ property because of the outstanding debt. The state cannot prove that a person’s intent is fraudulent other than by inferences arising from his conduct. "[T]he proof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract.” Baker v. State, 131 Ga. App. 48, 51 (205 SE2d 79). When the state offered the above evidence, the burden of proof shifted to the defendant to account for the funds by showing that they were used to pay for the materials or, at least, that their use was not fraudulent as to the prosecutors of this action. Moore v. State, 104 Ga. App. 93, 94 (121 SE2d 75); Baker v. State, supra.

In a subsequent appeal of Baker v. State, 135 Ga. App. 500 (218 SE2d 171), we held that, where the state merely proved a breach of contract, this could not support a conviction for fraudulent conversion. The evidence in Baker was that the defendant was fully paid for construction of two houses, yet he completed neither because he had run into unforeseen difficulty with a subcontractor. Each of his customers was required to pay off materialman’s liens on his property. Notably, in Baker, there was not the slightest inference that any amount of the money advanced was converted to his own use. Baker and the case sub judice differ factually. Here, defendant Jackson admitted that he received the money and knew that he was expected to pay the bills for supplies. He testified that he had not paid these bills, yet he had used the money, although he stated that he did not know what he had done with the funds. His wife corroborated the fact that he had received and spent the money advanced by his two customers. In light of this evidence, an acquittal was not required. The jury resolved the factual issue of intent and the jury’s verdict, supported as it is by evidence, should be upheld. Parrott v. State, 134 Ga. App. 160 (1) (214 SE2d 3).

Argued September 29, 1975 Decided January 6, 1976. Araguel & Sanders, Jerry D. Sanders, for appellant. Claude N. Morris, District Attorney, for appellee.

3. The trial judge charged the jury, in part, that: "The Georgia Criminal Code, § 26-1808, provides that a person commits Theft by Conversion, when having lawfully obtained funds or property of another under an agreement or other known legal obligation to make a specified application of such funds, or specified disposition of such property, he knowingly converts the funds or property to his own use, in violation of such agreement or legal obligation. The section applies whether the application or disposition is to be made from the funds or property of another, or from the accused’s own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own.” The defendant had requested the court to charge ". .. that in order to convict the defendant of each of the charges in the indictment, you must find that an agreement and a known legal obligation existed for the defendant to make a specified application of certain funds.” Since the given charge included the substance of the defendant’s requested charge, it was not error for the court to fail to charge in the specified language requested.

4. The fourth enumeration of error is without merit.

Judgment affirmed.

Deen, P. J., Clark, Webb and Marshall, JJ., concur. Bell, C. J., Pannell, P. J., Quillian and Evans, JJ., dissent.