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NICKLES v. THE STATE.
34925.
Larceny after trust. Before Judge Kennedy. Richmond Superior Court. September 4, 1953.
GARDNER, P. J.
The evidence failing to authorize the verdict that the defendant was guilty of larceny after trust, the verdict was contrary to law, and the court erred in overruling the defendant's motion for a new trial, based entirely on the general grounds.
On July 15, 1952, at the May term 1952, the grand jury of Richmond County returned an indictment against T. M. Nickles (hereinafter referred to as the defendant), in which he was charged with having, on October 26, 1950, committed the offense of "larceny after trust, over $50.00," having on said date "been entrusted by the County Board of Education of Richmond County, a corporation, with two thousand dollars in money, of the value of $2,000 and the property of the County Board of Education in Richmond County . . . for the purpose of applying the same for the use and benefit of the said County Board of Education . . . after having been so entrusted, did wrongfully, fraudulently and feloniously convert the said $2,000 to his own use." The defendant, on June 15, 1952, filed in the Superior Court of Richmond County his written motion for a changer of venue in said case. The defendant alleged, as ground for such motion, that he could not obtain a fair trial in Richmond County before a fair and impartial jury. The defendant was Chairman of the Richmond County Board of Education at the time he is alleged to have committed the offense charged. It appeared that he had served in such office for some ten years and had remained active in local politics of Augusta and Richmond County and was more or less in the forefront for a long time.
The motion to change the venue came up for a hearing before Hon. F. Frederick Kennedy of Richmond Superior Court, said judge acting as the judge of the law and the trior of facts. After hearing the evidence the court denied the motion, and the defendant excepted directly to this court. This court, pursuant to the provisions of Code 6-701 and the authorities following same, ruled that there had been no final judgment and dismissed the writ of error, holding, however, that the defendant be permitted, "if counsel for the defendant so desires, to have this direct bill of exceptions filed and treated as an exception pendente lite so that the error assigned upon the trial court's judgment may be ultimately passed upon and determined by this court, and the trial court is so directed." Nickles v. State, 86 Ga. App. 284 (71 S. E. 2d 574). At about the same time, the defendant brought another writ of error assigned by him as to the order overruling the defendant's demurrer to this indictment and he filed his bill of exceptions to this court, assigning error thereon. The judgment was reversed on the ground that the indictment failed to set out the names of the owner or owners of the property alleged to have been the subject matter of the larceny. See Nickles v. State, 86 Ga. App. 290 (71 S. E. 2d 578). In support of the motion for a change of the venue, the defendant introduced photostat copies of 34 articles and editorials of the two Augusta newspapers, namely the Augusta Chronicle and the Augusta Herald, covering a period of time from the date that the articles were published in the Augusta Herald on the afternoon of November 7, 1951, headlined "Nickles Is Indicted For Embezzlement," and the editorial of Sunday morning, March 16, 1952, appearing in the Augusta Chronicle, and headlined "Schools and Politics." The State introduced the testimony of three of the county officers available. Henry W. Poteet, a member of the county commission, testified that he was engaged in the business of an undertaker in the City of Augusta and had been so engaged for 22 years. In response to this question by the solicitor-general conducting the trial for the State: "On the trial of Mr. Nickles on this charge of larceny after trust, as a citizen of this county and having followed this case, state to the court whether or not Mr. Nickles could have a fair and impartial trial before a jury in Richmond County . . ." witness Poteet said: "I certainly think he would have a fair trial in Richmond County. It is his county and his people. I see no reason why he wouldn't have a fair trial; he certainly would have a better chance of a fair trial in Richmond County than he would somewhere else." In response to a similar question by the solicitor, W. W. McElmurray, Chairman of the Board of Richmond County Commissioners, stated: "I believe he can get a fair trial. We have as good citizens here in this county as there are in the United States." Nathan F. Widener, Coroner of Richmond County, in reply to a similar query put by the solicitor-general, stated that he believed that the defendant would procure a fair trial on the charge against him of larceny after trust--and that this was just his opinion.
The trial judge, after consideration and argument, and the introduction of the various articles from the newspaper, and the testimony of the said witnesses, denied the motion.
As heretofore stated, to this judgment and order the defendant filed, as the court had allowed, exceptions pendente lite. In the bill of exceptions assigning error on the order denying the motion for new trial, error is assigned on these exceptions pendente lite.
The defendant entered his plea of not guilty to the charges in said indictment, on June 15, 1953, and the case proceeded to trial before Hon. F. Frederick Kennedy and a jury.
The evidence for the State was substantially as follows: that the defendant was chairman or president of the board of education of the county; that the Augusta Vocational School was a part of the county school system under said board; that Ogden was in charge of the school and director of vocational education; that McDonald was the county school superintendent; that said vocational school needed two lathes and Ogden went to Philadelphia and got in touch with the firm of O'Brien relative to buying these lathes for the school; that he made an initial payment to O'Brien of $50; that when he returned, he took this matter up with the defendant and the school superintendent, and it was agreed that the lathes were to be purchased from the local find of Dye & Dozier, who would get same from O'Brien for the total sum of $1,950, and checks in the sum of $50 were issued by Ogden as head of the vocational school as per instructions and signed for the school by Ogden; that there was also another check signed in the same manner payable to said firm for $123; and that there were two checks for said sum of $1,950 each, payable to said firm and signed by said school. There were in the record statements from Dye & Dozier to said school for $123, $1,950, $1,950, and $50. Also there appears a letter from O'Brien to Reville, cashier, showing that a cheek for $1,469.35 was transmitted as well as a statement from O'Brien to the defendant for $2,023, showing a credit of $550, leaving a balance of $1,473, marked "Paid" April 11, 1951. These represented two lathes bought from O'Brien by the defendant. A copy of the check from the school to the A. C. L. Railroad for $129.67 appears in the record. This was for the freight charges. Further State exhibits show a check of the Augusta Vocational School payable to "Cash," marked "For trip to Philadelphia," and also as exhibits there are letters from the defendant to O'Brien in reference to the lathes so bought. There is also a State exhibit consisting of a bank statement of the school account from March 1948 through December 29, 1950. The same shows that in addition to the $50 paid O'Brien as a deposit on the lathes, the defendant on November 10, 1950, sent to him $500 additional deposit, which deposits were $550, and were credited against $2,023, apparently the amount actually paid out by the defendant for these lathes, leaving due $1,473. Then on March 16, 1951, there appears a letter from the defendant to O'Brien requesting shipment of the lathes to the school. The bank statement of the school shows payments out of the bank account in 1950, being the payment on October 28, 1950, $4,023.
The record shows: that checks were issued by Ogden as head of said school under instructions of the superintendent, McDonald, for $1,950 each to pay for the two lathes, which checks were payable to and mailed to the firm of Dye & Dozier; that these lathes were worth from $3,000 to $5,000; that Dozier was the active partner of the firm, Dye entrusting the business and its operation to him; that Dozier's business was in Blythe where the defendant operated a bank, wherein he deposited school funds; that this defendant kept all the books and records and also wrote the letters for Dye & Dozier and generally took care of their clerical details; that Dozier, when he received these two checks, transmitted them to the defendant, who endorsed them for the firm, as was his custom; that the defendant kept all the records between the firm and the bank and had authority to endorse their checks and did so, endorsing the ones involved; that Dozier had sold other articles to the board of education and all were handled in the same manner; that the defendant "didn't get any of it--that was our transaction and we got profits out of all of them"; that Dozier received all of the profits from the lathe transaction, the witness stating: "Sure, I got it all. Well, I thought I was getting all of it. I think I got all of it"; that the negotiations of Dozier were with the defendant and not with the school superintendent or the vocational school, and the correspondence relative to these lathes was between the defendant and O'Brien, the firm of Dye & Dozier not having a typewriter, and the defendant was handling all their correspondence at the time; and that O'Brien in Philadelphia was paid for the lathes out of the proceeds of these two checks for $1,950 each, and the defendant deducted same from the account of Dye & Dozier when he had a settlement with the firm. The record shows a check of the Augusta Vocational School payable to O'Brien and signed by Ogden for $50; there was also another check signed in the same manner payable to the firm for $123; and there were two checks for said sum of $1,950 each, payable to this firm, and signed for said school by Ogden.
The jury found the defendant guilty of "larceny after trust of over $50. We fix his sentence at one year minimum and one year maximum. We respectfully recommend that he be punished as to [for] a misdemeanor. We ask for mercy."
The court denied the defendant's motion for new trial, and to this judgment he excepts.
1. There is no merit in the motion to change the venue on the ground that the defendant could not obtain a trial in the county before a fair and impartial jury. The evidence for the defendant on the hearing of his motion to change the venue consists of 34 newspaper articles, all published long before the alleged larceny charged to the defendant and concerning other conduct with reference to board of education matters. Three witnesses were introduced by the State, persons who had opportunity to know the situation, to the effect that the defendant could obtain a fair trial before an impartial jury in that county. In such a case, the judge did not abuse the discretion vested in him in denying the defendant's motion to change the venue. See Golden v. State, 47 Ga. App. 746 (171 S. E. 387); Johns v. State, 47 Ga. App. 58 (169 S. E. 688); Rawlins v. State, 124 Ga. 31 (52 S. E. 1); Loyd v. State, 25 Ga. App. 33 (102 S. E. 378); Vanderford v. State, 126 Ga. 753 (55 S. E. 1025); Biggers v. State, 171 Ga. 596 (156 S. E. 201); Douberly v. State, 184 Ga. 573 (192 S. E. 223); Lucas v. State, 74 Ga. App. 682 (41 S. E. 2d 163). This case is not like Geer v. State, 54 Ga. App. 216 (187 S. E. 601), and similar cases.
2. The evidence was insufficient to authorize a verdict finding the defendant guilty of larceny after trust. When the case was here before (Nickles v. State, 86 Ga. App. 290, 71 S. E. 2d 578), this court held: "Larceny after trust is a species of larceny and in prosecutions for the former offense, as in those for the latter, it is necessary to allege ownership . . . Scarboro v. State, 207 Ga. 449 (62 S. E. 2d 168)." That question is not now before the court. In Hamby v. State, 78 Ga. App. 303 (50 S. E. 2d 760), it is ruled: "The indictment is drawn under Code 26-2811, with eight counts. The first and second counts cover one transaction, the third and fourth another, the fifth and sixth another, and the seventh and eighth still another. In each of the odd-numbered counts it is alleged that the property described in the indictment, certain automobiles specified in each count, had been entrusted to the defendant for the purpose of selling them and paying the proceeds of the sale to the owner, but that instead of doing this the defendant, before he sold the property, converted the automobiles to his own use . . . The proof may show that he never sold any of the cars, in accordance with the entrustment, but converted them to his own use." The defendant may be found guilty. "The charge in the indictment being that defendant, having been entrusted by Emma Lipscomb with a certain amount of money to be applied to the use and benefit of Ike Lipscomb, to whom it belonged, fraudulently converted it, etc., was not sustained by the evidence, which showed that the confidence was reposed in defendant and the trust delegated to him by Ike Lipscoinb and that Emma simply acted as the agent of Ike in handing defendant the money, which belonged to Ike." McCrary v. State, 81 Ga. 334 (6 S. E. 588). This is a clear and concise statement of the law applicable and states clearly the elements of the offense of larceny after trust. There was nothing in the evidence adduced to the jury tending to show any of these elements save that of delivering this money by Ike's agent to the defendant. It did not state a felony, and proof thereof would not have justified a conviction of larceny after trust.
There is no proof in the present case that the defendant even got the money ($2,000) alleged to have been converted by the defendant under circumstances amounting to larceny after trust. There must appear all three elements in order to authorize a jury to convict a defendant of larceny after trust. There must have been a contract and understanding between the defendant and the victim whereby the former received the money from the latter with the distinct agreement and understanding that he would apply the same to a particular use for the benefit of the person defrauded. There is no evidence that the defendant ever converted this money, or that he was entrusted therewith for a particular purpose.
As stated there are three essential elements of the offense of larceny after trust and they are: (1) entrustment, (2) purpose of entrustment beneficial to owner or third person, and (3) fraudulent conversion. There is no evidence authorizing the inference of these elements, and the verdict rendered is illegal, erroneous, without evidence to support it, and contrary to law. Waters v. State, 82 Ga. App. 157 (60 S. E. 2d 798). A new trial is demanded under the evidence, rather from the lack of evidence. There must be this entrustment and understanding under the Code sections, and such did not appear from the evidence, and under the record of this case it does not authorize the conviction of this defendant of larceny after trust of over $50.
There was no fraudulent conversion of this money insofar as the defendant was concerned. The witness Dozier stated that he got, or rather his firm of Dye & Dozier, got the entire profits from the sale of these lathes. The money was paid out by Ogden of the Augusta School Board to purchase these lathes, and they must have been bought, as a bill for the freight appears in this record. The words "fraudulent conversion" constituting an essential element of the crime of larceny after trust delegated, as defined by the penal Code, are synonymous with the words "taking with intent to steal" in cases of ordinary larceny. Proof of fraudulent conversion necessarily proves both the act and intent, or "the union of act and intention," in the commission of the crime. See Hagood v. State, 5 Ga. App. 80 (62 S. E. 641); Jackson v. State, 76 Ga. 551; Green v. State, 114 Ga. 918 (41 S. E. 55). The gravamen of the offense of larceny after trust is the fraudulent conversion of the property of another. Dobson v. State, 72 Ga. App. 74 (32 S. E. 2d 923). We have searched painstakingly through the evidence adduced on the trial of Nickles, and fail to find any evidence tending to show that he had any agreement or understanding with the said Ogden, as head of such school, as to what he should do with the money, and we fail to find that he was entrusted with the money by Ogden or any other person. Where one of the necessary ingredients of larceny after trust is lacking, there can be no legal conviction thereof. See Wood v. State, 11 Ga. App. 242 (74 S. E. 1100). In Huff v. State, 79 Ga. App. 717 (54 S. E. 2d 446), where this court held that the evidence did not authorize the verdict of guilty of larceny after trust, and the conviction of the offense was contrary to law, it appeared from the testimony of the prosecutor that the money was paid, not entrusted, to the defendant, and this court said: "Even if the defendant never really intended to provide the tombstone at all but fraudulently pretended that he would do so for the purpose of obtaining the money and applying it to his own use, the evidence demonstrates that the money was paid to Huff, not entrusted to him, and while the facts of the case may show great moral turpitude on the defendant's part, they do not render him guilty of larceny after trust." Citing Wylie v. State, 97 Ga. 207 (22 S. E. 954).
It follows that the evidence here entirely failed to show that the defendant even received the $2,000 mentioned in the indictment, and that he merely acted as agent for the firm of Dye & Dozier and was not a member thereof; and thus there was no evidence to authorize his conviction of the offense charged, and the same was contrary to law.
As to whether or not, under all the facts and circumstances of this case, the defendant may be guilty of some other offense under our laws, is not now before us.
The trial court judge erred in overruling the defendant's motion for a new trial, which was based on the general grounds only.
Judgment reversed. Townsend and Carlisle, JJ., concur.
Geo. Hains, Solicitor-General, E. D. Fulcher, contra.
Harris, Chance & McCracken, for plaintiff in error.
DECIDED JANUARY 21, 1954.
Saturday May 23 03:45 EDT


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