The State, having failed to prove beyond a reasonable doubt the charge laid in the indictment, and it appearing from the evidence that there was no bailment created and no entrustment or delivery of the lumber by the lumber corporation to the defendant as charged and as contemplated by the provisions of Code 26-2511, the verdict finding the defendant guilty (as charged) under said Code section was unauthorized by the evidence and contrary to law, and the court erred in overruling the defendant's motion for new trial on the general grounds.

The grand jury of Madison County indicted W. R. Yearwood for larceny after trust, it being recited in the indictment that, on January 10, 1949, the defendant, after having been entrusted by Williams Brothers Lumber Company (a corporation), with certain lumber of the value of $3088.80, belonging to said corporation, for the purpose of selling such lumber and paying the proceeds thereof to said corporation, did fraudulently convert the lumber and proceeds thereof to his own use, without paying the owner the full value and market price thereof, to the loss, damage and injury of the owner in the sum of $3088.80 in violation of Code 26-2811. To this indictment the defendant entered a plea of not guilty. The case proceeded to trial before a jury in Madison Superior Court and resulted in a verdict finding the defendant guilty as charged. The defendant moved for a new trial upon the general grounds and by an amendment thereto added certain special grounds.

Upon the trial the following facts appeared from the evidence, oral and documentary: On February 26, 1948, the defendant, for $34,000, purchased from H. R. and J. R. Williams the "commercial saw timber" on certain described lands, known as the Dickson tract, paying to the latter $5000 on the purchase-price. On March 16, 1948, the defendant executed and delivered to said 11. R. and J. R. Williams a security deed under Code 67-1301 conveying the legal title to said timber for the purpose of securing the balance of $29,000 due on the purchase-price of this timber, such balance being represented by a promissory note executed by the defendant and payable to said grantees in the security deed, such note being payable $15 per thousand board feet as said timber should be sawed by the defendant or $1000 monthly, with power of sale in case of default.

Williams Brothers Lumber Company is a corporation and its stockholders are H. R. Williams, J. R. Williams, John R. Williams and R. W. Williams.

On August 18, 1948, the defendant released to H. R. and J. R. Williams "all lumber sawed at my mill also all timber on the lands covered by timber leased with you in Madison County, Ga. I understand that if any net profit is derived from the lumber and timber I'm to receive same."

On August 24, 1948, the defendant and H. R. and J. R. Williams entered into a written agreement, which recited the execution of said instrument of March 16, 1948, between the parties, and also that the defendant was indebted to said H. R. and J. R. Williams for a balance of the purchase-money on the timber set out in said agreement of $24,683.62 "less one carload of lumber." This agreement also recited the release by the defendant of all said timber and all lumber on hand to said H. R. and J. R. Williams. Said agreement provided that the title "to all of the lumber sawed on the yard at this time and also all future lumber that may be sawed shall remain in said second parties" (meaning H. R. and J. R. Williams), and that the defendant agreed to saw all timber. This agreement also provided that in consideration of $500 the second parties agreed to cancel any balance that might be due on the promissory note of the defendant to them "if by operation of this contract the proceeds are insufficient to pay said balance" and that "all the lumber on the yard at this time is to be sold and the proceeds credited on the note and the terms herein for cutting and sawing shall apply to all future timber sawed." This agreement further provided that the second parties shall advance $32 per thousand on all framing sawed and stacked on the defendant's yard, and the sum of $32.50 on all boards sawed and so stacked; that when such framing is sold the second parties are to retain $20 per thousand feet plus the $32 advanced and remit to the defendant the balance, if any; that on the sale of the boards the second parties are to retain $17.50 per thousand feet and the $32.50 advanced, remitting the remainder, if any, to the defendant; that if same does not bring the above sums, the second parties shall retain the entire proceeds of the sale; that all sums realized except the sums advanced shall be credited on said note; and that the title to said standing timber on said lands and any timber cut shall remain in the second parties and the defendant should have no interest or title other than the equity derived from the sale thereof according to the terms of the agreement.

None of the foregoing instruments nor any interest, right or title of said H. R. and J. R. Williams in and to same or in and to the timber or lumber cut and sawed by the defendant were transferred by said parties to Williams Brothers Lumber Co., the corporation.

On December 11, 1948, the defendant obtained a conveyance of the saw timber upon another tract of land from Mrs. Dora Rutherford, same being for a consideration of $4000, and on the back of this instrument, on the same date, the defendant transferred this conveyance to said Williams Brothers Lumber Co., the corporation.

On said date of December 11, 1948, the defendant and said company entered into an agreement which recited the purchase by the defendant of the Dickson timber for $34,000, that "Williams Brothers Lumber Company advanced the money to pay for the same or sold said timber to the defendant (which fact does not appear from the record); that the defendant had a deficit of $10,000 to $13,000 on this tract; that under the terms of this contract the defendant was to pay $500 for any release on the remainder due; that the defendant executed a timber lease with Mrs. Rutherford on said date for $4000 and transferred same to said corporation. Said instrument further provided that in consideration of the premises the defendant agreed to "repay" $4000 to said corporation plus $1000 of the deficit exclusive of the $500 as follows: "That said W. R. Yearwood is to pay to Williams Brothers Lumber Company [a corporation] the sum of $25 per thousand as said timber is cut and sold out of the proceeds there from and is to transfer each bill of lumber sold to Williams Brothers Lumber Company. It is further agreed that the said Williams Brothers Lumber Company will advance the said W. R. Yearwood the sum of $25 per thousand on lumber stacked on yard and not sold. It is further agreed that when the sum of $500 has been paid at the rate of $25 per thousand, in that event, the said Williams Brothers Lumber Company is to retain the sum of $5 on each additional thousand feet of lumber, which shall be applied on the deficit as referred to herein. It is understood between the parties that in order for the said Williams Brothers Lumber Company to finance said tract of timber and the cutting thereof, that it is necessary for the said (defendant) to pay at least $1000 on a former loss, plus $5 per thousand on the lumber cut over 200,000 feet." Said agreement then described a forty-acre tract of land as being the tract referred to therein.

The evidence fails to disclose that the lumber corporation had any right, title or interest in the Dickson tract, which was cruised at over 2,000,000 feet of lumber, and which comprised the bulk of the timber cut by the defendant. The evidence does show that the lumber corporation obtained a transfer of the defendant's lease to the smaller Rutherford or Stone tract, but the evidence fails to show any sale by the defendant of lumber cut therefrom and failure on his part to pay or account to the corporation for its portion of the proceeds. R. W. Williams, testifying for the State, stated that the corporation owned the Dickson tract, but this is not borne out by the record evidence.

The particular manner in which it is sought to show that the defendant committed larceny after trust as to the sale of the lumber and failure to pay over the proceeds to the lumber corporation is as follows: There was evidence to the effect that the defendant was cutting timber and sawing lumber, selling some but not selling all he cut and sawed, and that, in order to finance the defendant in the cutting and sawing of this timber, the corporation advanced to him weekly certain sums on the amount of lumber which the defendant stated that he had sawed and which was then stacked on his yard and unsold, doing this for the purpose of enabling the defendant to meet his weekly payrolls. R. W. Williams, secretary and treasurer of Williams Brothers Lumber Company testified in part for the State as follows: "In order that we might help him finance the deal, in order that he might get the money to operate, as he was running short of money, he would come in to see me each Saturday morning. He would go on and sell the lumber and ship it during the week that he was to cut. He was to sell the lumber and ship it and wire assignment to the corporation and direct the payment to be made to . . Williams Brothers Lumber Company. The auditor made the check to the lumber corporation and mailed it direct to us, and it would take several days for the check to come through. In order that he might meet his payroll he would come in on Saturday morning, and I would make a check out for the amount of lumber used in the sawmill business that he couldn't sell as he sawed, and he had it stacked on his yard for the purpose of drying. He didn't have the money to finance it and he had to pay his men for sawing it and the men to stack the lumber, and he had to pay them on Saturday morning. In order to help him we advanced $32 a thousand, which was supposed to go for logging and sawing and $2 for the stacking. And we advanced that to him and entrusted it to him [for lumber stacked] on his yard. At the time he sold the lumber we were to deduct $32 with stump age that we were entitled to.

On August 28, four days after we [H. R. and J. R. Williams] signed the contract, we gave him a check for $1630.34, and of that amount $547.75, representing 17, 117 feet which was lumber he represented to be stacked on the yard. That check was payable to him, and I have the cancelled check with his endorsement on the back . . . On September 4th we gave him our check in the amount of $787.79 and of that amount we advanced $299.39, representing 9,356 feet of lumber stacked on the yard. He endorsed the check and it was paid by our firm. On September 18, 1948, we advanced a check in the amount of $1014.93, and of that amount we advanced a total of $465.66, representing 14,552 feet of lumber stacked on the yard . . . On October 9th we gave him our check . . . In the amount of $795.07, and of that amount $695.07 represented 21,721 feet of lumber which he stacked on his yard. On October 16, 1948, we gave him our check in the amount of $319.17. That was for the full amount we advanced for lumber stacked on his yard, representing 11,606 feet of lumber. On October 23, we gave him our check in the amount of $506.11, representing 16,767 feet of lumber stacked on his yard. On October 30, 1948, we gave him our check in the amount of $357.89, representing 10,150 feet of lumber . . . On September 11, 1948, we gave him our check in the amount of $1,503.78, and of that amount $353.47 representing 11,046 feet of lumber was advanced to him for lumber stacked on his yard. As I said before, when he sold lumber from that stacked on the yard, he was to deliver--when the check was delivered to us we would deduct the $32 advanced, plus the stumpage off . . . The value of the lumber which he reported to us and the advancements that we made that he didn't pay us for amounted to a loss of $3,088.80 77,220 feet that was short. He never did account to us for all of the lumber that we entrusted to him for sale . . . To explain how the shortage of $3,088.80 occurred: There are two tracts involved, the Dickson tract and the Rutherford tract. [However, the record shows that the Rutherford tract was not obtained from Mrs. Rutherford until December 11, 1948.] On the Dickson tract we advanced [meaning payment on] the total of 114,521 feet, and on the Rutherford tract we made a total advance [payment on] 21,000 feet; that is a total advance [payment on] 135,531 feet that we advanced in all. He reported as having been sold off that yard a total of 114,526 feet. Subtracting, that leaves 112,595 feet that should have been on the yard. Our truck went over there, I think about March 15, 1949, and we picked up a total of 43,775 feet, being 77,220 feet short of what we had advanced to him 50 he could pay us and he failed to account for."

On cross-examination this witness testified in part as follows: "This contract of August 24, 1948 is between W. R. Yearwood and H. R. and J. R. Williams. Williams Brothers sustained this loss because they advanced the money to W. R. Yearwood. H. R. and J. R. Williams had advanced no money at all. From the date of the contract of August 24 until the present time this contract has never been cancelled, transferred or assigned. The title to this timber and the lumber that might have been produced from it is in H. R. and J. R. Williams. Williams Brothers Lumber Company sustained a loss; they advanced the money. The title is vested in H. R. and J. R. Williams, but all the transactions were with the corporation--payments to the corporation; the corporation paid for the timber. No money was advanced by H. R. and J. R. Williams.

I would advance him (defendant) the money in good faith because he needed the money; that he was under hardship, and I loaned him the money without security at all, just through my faith in him that he would pay it back. It wasn't paid back nor the other included in the thirty-two hundred dollars. He owes us in advancements on specific lumber $3088.80 . . . We did not take a bill on the specific lumber showing how many feet and what kind of lumber it was. I know that Mr. Yearwood told me that he stacked that much lumber on the yard for the past week and each time I made the advances to him he said he would stack ten thousand feet on the yard; and I would advance him for the ten thousand at $32 a thousand. I would advance that much money on his word. I never advanced him any money except what he told me had been placed on the yard.

I didn't see the lumber."

There was some evidence as to certain lumber being sold off the yard and payment not made to the corporation, but it appeared that these were transactions dealt with in two other indictments, allowed in evidence solely for the purpose of showing intent, motive, etc.

The defendant was indicted and convicted for an alleged violation of Code 26-2811, which reads as follows: "Any person who has been entrusted by another with any article of value, for the purpose of selling the same and paying the proceeds of such sale to the owner or other persons so entrusting or delivering the article, who shall fraudulently convert the same, or any part thereof, or the proceeds of any part thereof, to his own use, or shall otherwise dispose of the same to the injury and without the consent of the owner or other person so entrusting or delivering it, and without paying to such owner or person the full value or market price thereof, shall be punished by imprisonment and labor in the penitentiary for not less than one year nor more than five years." By its plain terms, this statute makes it a penal offense for one to sell or otherwise dispose of timber or lumber belonging to another, after having been entrusted by such other person with the same for the purpose of selling it and delivering the proceeds of the sale to the owner or person so entrusting or delivering the timber or lumber to him, and to fail to pay the proceeds of such sale to the owner or person so entrusting or delivering the timber or lumber or other property. There would be no violation of this section unless the State shows beyond a reasonable doubt that there was an actual entrusting or delivery of the property to the defendant and a conversion thereof by him by sale or otherwise and failure to pay the proceeds of the sale to the person entrusting or delivering the lumber or property to him. Under this section it must appear that a bailment is created by the owner of the property or person entrusting the defendant therewith, and the defendant. If, under the facts, no bailment appears, then there can be no larceny after trust under this section by a failure of the defendant to pay the proceeds of the sale of the property over to one who advanced money to him on his representation that he would sell certain property which he stated he had in his possession, and in which he had an interest, and repay the person advancing the money therefrom.

It appears from the evidence that the Williams Brothers Lumber Company, a corporation, did not have any title to nor interest in the timber on the Dickson tract. The defendant, having been vested with the title thereto, purchasing same front H. R. and J. R. Williams, made to them a security deed to secure the balance due by him to them on the purchase-price thereof. This conveyance was never transferred to the corporation. H. R. and J. R. Williams were two of the stockholders of said lumber corporation. Their title to secure the balance due them on the purchase price remained in them and was not the title of the corporation, nor did the fact of their being stockholders give to the Corp oration any legal interest as contemplated by the Code section under which the defendant was indicted, in said timber on the Dickson tract. The evidence further disclosed that the transactions in which it is claimed that the defendant violated Code 26-2811 by obtaining advances of money from the corporation on the lumber sawed from this timber and which he stated that he had stacked upon his yard took place from August 28, 1948, through October, 1948, and during that time the corporation had no title or interest as to the Rutherford tract, as it affirmatively appears from the evidence that the defendant acquired the timber on this tract from Mrs. Dora Rutherford on December 11, 1948, and on the same day transferred same to the lumber corporation to secure the advance by it to him of the purchase-money for this tract of timber. During said time, from August, 1948, through October, 1948, the title to the Dickson tract of timber and to the lumber sawed by the defendant therefrom was in said H. R. and J. R. Williams. It does not appear therefore, that Williams Brothers Lumber Company, who it is set out in the indictment owned the lumber and entrusted or delivered same to the defendant to be sold by him and a portion of the proceeds paid to it, did not have title thereto and could not entrust the same to the defendant.

There was a variance between the person named in said indictment as the owner of the timber and the lumber sawed and the persons shown by the evidence to have been the owners. As to the lumber cut from the Dickson tract, the corporation did not have any title or interest insofar as the evidence discloses, but on the contrary the title thereto was in H. R. and J. R. Williams individually. As to the small tract of timber acquired by the defendant from Mrs. Dora Rutherford, during the time the secretary and treasurer of the lumber corporation claimed that the defendant was entrusted by said corporation with certain lumber to sell and pay over to it the proceeds, from which it was to deduct certain sums, including the advancements made to defendant, said timber had not been acquired from Mrs. Rutherford and transferred to the corporation and therefore cannot be considered as evidence sustaining a conviction under the indictment in the instant case. The evidence therefore fails to sustain the allegations of the indictment that the lumber corporation entrusted or delivered to the defendant certain lumber which it owned for sale by him and the proceeds of the sale to be paid over to the lumber corporation, and that the defendant had on January 10, 1949, fraudulently converted the same to his own use without paying to the lumber Corp oration the full value and market price thereof. It does not appear that the lumber corporation owned such lumber, but it appears to the contrary, namely that the same was owned by H. R. and J. R. Williams, two of the stockholders in said corporation; and neither does it appear that the lumber corporation entrusted or delivered said lumber to the defendant, but it does appear that the defendant already had possession of the lumber, together with the right to the possession thereof, under the terms of the contract between the defendant and H. R. and J. R. Williams. Under the facts, there was clearly no bailment, no entrustment or delivery of the lumber by the corporation to the defendant for a specific purpose, which he fraudulently failed to comply with. It appears affirmatively that the lumber corporation did not leave title to or own said lumber. At most the evidence shows a representation by the defendant which may or may not have been true and shows a failure of the defendant to sell the lumber represented by him to be stacked in his yard and on which the lumber corporation advanced or loaned certain sums of money, and to account to or failure to pay to the lumber corporation for the sums advanced plus the stump age claimed. This would not be, under the facts appearing here, any fraudulent conversion of the lumber or the proceeds thereof by the defendant, particularly as to the lumber corporation as charged in the indictment.

It follows that the evidence failed to sustain the allegations of the indictment and that the State did not show beyond a reasonable doubt that the defendant was guilty as charged. The alleged bailment or trust must be proved as laid and proof as to H. R. and J. R. Williams would not suffice to sustain the defendant's conviction. See Rucker v. State, 95 Ga. 465 (20 S. E. 269).

There is nothing in the case of Chaffin v. State, 5 Ga. App. 368 (63 S. E. 230), to the contrary of what we now rule. In that case the defendant had no interest in the timber or lumber, as did the defendant in the case at bar.

The trial court erred in overruling the defendant's motion for new trial on the general grounds. As a new trial is granted on the general grounds, it becomes unnecessary to consider the special assignments of error contained in the amendment to the motion for new trial.

Judgment reversed. MacIntyre, P. J., and Townsend, J., concur.