The defendant, a county commissioner, was indicted jointly with other persons for the offense of theft by taking. There were two separate indictments, and each contained multiple counts. He was also indicted for the offense of selling personal property to a political subdivision of which he was an officer, which indictment contained five counts. Prior to arraignment, defendant filed general and special demurrers to the indictments, and moved to dismiss same. The demurrers were overruled, the trial judge signed a certificate of immediate review, and defendant appeals to this court. Held:

appropriate said property to their [defendant and co-defendant] own use in that the said county commissioner "did make, draw, and sign a check" in a specified amount upon funds of the County of Gordon, which check was made payable to another person, which said payee negotiated said check and received the proceeds thereof, whereas a part of the money specified in said check was not for any debt due by the county.

McMillan Bros., 15 Ga. App. 319 (1) (83 SE 149); Few v. First National Bank, 40 Ga. App. 791 (2) (151 SE 546); Foster v. Peoples Bank, 42 Ga. App. 102 (1) (155 SE 62).

We repeat that the allegation that possession of the money was in the county commissioner is completely negated by the subsequent allegation that same was in a bank. The defendant is entitled to have the allegations of the indictment, prior to conviction, construed most favorably towards his position. And at the very least, the two opposing statements in the indictment would tend to neutralize and destroy each other. Adams v. Johnson, 182 Ga. 478, 480 (185 SE 805).

The trial court erred in overruling tide demurrers as to indictments No. 351 and No. 352.

2. Indictment No. 355 alleged that the county commissioner sold certain personal property to the county, to wit, "services," etc. The demurrer challenges the indictment upon the ground that the statute does not penalize the selling of services by a county commissioner to the county that he serves; and in effect charges that services are not included within the term "personal property."

We hold that personal property includes services. See Bainbridge Power Co. v. Ivey, 38 Ga. App. 586, 588 (10) (144 SE 825); Frazier v. Georgia R. Co., 101 Ga. 70 (3) (28 SE 684); Pinkerton &c. Agency v. Stevens, 108 Ga. App. 159, 161 (1) (132 SE2d 119); Studdard v. Evans, 108 Ga. App. 819, 822 (135 SE2d 60); Blakeman v. Harwell, 198 Ga. 165, 166 (6) (31 SE2d 50).

Further, the new Criminal Code defines property as including services. Code Ann. 26-401 (n) (Ga. L. 1968, pp. 1249, 1263; 1970, pp. 236, 237).

The trial court did not err in overruling the demurrers or defenses as to indictment No. 355.