Opinion
36538.
DECIDED JANUARY 30, 1957. REHEARING DENIED FEBRUARY 14, 1957.
Larceny after trust. Before Judge Thomas. Glynn Superior Court. October 29, 1956.
G. B. Cowart, for plaintiff in error.
W. Glenn Thomas, Solicitor-General, contra.
Where one voluntarily obtains money from another to be entrusted to him for the use of the owner and he violates the entrustment and fails to return the money, he is guilty of larceny after trust.
DECIDED JANUARY 30, 1957 — REHEARING DENIED FEBRUARY 14, 1957.
J. E. Cole, whom we shall call the defendant, was indicted on 13 counts. The counts are identical with the exception of the dates, the names of the owners of the money, and the amount of the money involved in each instance. The defendant procured money from the owners under the following written agreement entered into between him and the owners of the money as follows:
"The Cole Agency Real Estate Loans Insurance Brunswick, Georgia March 4, 1955
"Received of ________________________, __________________ dollars deposit on a proposed house, for which I am to make application to FHA for a loan commitment to have a dwelling erected on your lot located in Brunswick, Georgia. The house is to be in accordance with plan No. __________, By: ___________
"It is mutually agreed and understood by all parties concerned that above deposit is to be used for the expense for working out the loan, etc., all of which will be included in the closing cost, after the house has been completed.
"It is further agreed that if for any reason this loan application should not be approved by FHA the above mentioned deposit will be returned less cost of plans, heat loss calculations, service fees, etc.
Signed: S/ J. E. Cole" The other counts were based on parol agreements substantially the same as the written agreement quoted hereinabove. The jury returned a verdict of guilty against the defendant on the 13 counts.The evidence reveals that the defendant induced the 13 owners to let him have a certain amount of money, ranging as high as $350, over a period of a number of months. The evidence further reveals that he did not procure a single loan commitment with the FHA. The evidence further reveals that he did not return any of the money to either one of the 13 owners who turned it over to him.
The defendant filed a motion for new trial on the general grounds only which the court denied and the defendant assigns error on this judgment here.
The jury were authorized, under the evidence, to find that the defendant well knew that FHA would not approve these applications on the part of the defendant and that the defendant had been so advised by the FHA. With this knowledge the defendant continued to accept deposits and applications from these owners. The defendant does not show that he returned to the owners any of the money which he received in excess above expenses.
The defendant relies on and calls our attention to only three decisions to sustain the contention of reversal. These are: Wylie v. State, 97 Ga. 207 ( 22 S.E. 954), Huff v. State, 79 Ga. App. 717 ( 54 S.E.2d 446), and Tant v. State, 81 Ga. App. 633 ( 59 S.E.2d 557). These cases speak for themselves. The facts in these cases are not at all similar to the facts in the instant case. In our opinion the instant case is controlled by Walker v. State, 117 Ga. 260 (1) ( 43 S.E. 701) wherein the Supreme Court held: "Where one entrusted with money by another fraudulently converts it to his own use, he is guilty of larceny after trust, though he may have fraudulently induced the delegation of the trust with intent to so convert the money." In Martin v. State, 123 Ga. 478 ( 51 S.E. 334) it is held: "If a person, fraudulently intending to get possession of the money of another and appropriate the same to his own use, by false representations induces the owner to deliver the money to him for the purpose of being applied for the owner's use or benefit, and then appropriates it in pursuance of the original intent he is guilty of both larceny after trust delegated and simple larceny, and may be prosecuted for and convicted of either offense." In Price v. State, 76 Ga. App. 283 (1) ( 45 S.E.2d 462) this court held: "Under the evidence in this case, the jury were authorized to find that the money was entrusted to the defendant for the use and benefit of the owner, and that the defendant converted the same to his own use and there was no loan of the money from the owner to the defendant."
The court did not err in denying the motion for new trial.
Judgment affirmed. Townsend and Carlisle, JJ., concur.