Opinion
33757.
DECIDED OCTOBER 25, 1951. REHEARING DENIED DECEMBER 5, 1951.
Larceny after trust; from Hall Superior Court — Judge Edmondson. June 19, 1951.
Johnson Johnson, for plaintiff in error.
Jeff C. Wayne, Solicitor-General, Everett C. Brannon, contra.
1. The exceptions pendente lite to the statement of the trial court, where the panel of jurors was not sufficient and the court drew them in accordance with the provisions of Publisher's Pocket Edition to the Code, § 59-801 (Ga. L. 1937, pp. 466, 468) — to the effect that the defendant desired a full panel — in the presence of other jurors, show no reversible error.
2. The evidence amply supports the verdict.
3. Special grounds 1 and 2 as to proof of venue are without merit.
4. Special grounds 3 and 4. To receive property of the owner upon his order for a specific purpose and, after receiving it by such order, to fraudulently convert it to the use of the receiver, is in law equivalent to receiving it from the owner.
5. It is not reversible error to refuse to admit, for the purpose of impeachment, a conversation between such witness and the prosecutor concerning an immaterial matter.
6. In the absence of a written request timely made, it is not reversible error to fail to charge on the credibility of witnesses.
7. Unless wholly dependent upon circumstantial evidence, in the absence of a written request to charge, a conviction will not be reversed for a failure to charge the law of such evidence.
8. The assignments of error concerning an excerpt from the charge of the court are without merit.
DECIDED OCTOBER 25, 1951. REHEARING DENIED DECEMBER 5, 1951.
H. C. Summerour was indicted for larceny after trust, "in that he did . . in Hall County, Georgia, after having been entrusted by Roy Roper with $500 in money, the property of Roy Roper, for the purpose of applying such money for the benefit and use of the owner and person so entrusting same, did wrongfully, fraudulently, and feloniously convert $400 to his own use in violation of the criminal laws of Georgia." The defendant was convicted with the recommendation of the jury that he be punished as for a misdemeanor. The judge followed this recommendation. The defendant filed his motion for a new trial on the general grounds and thereafter added nine special grounds. The motion was denied. On this judgment the defendant assigns error. The jury was authorized to find from the State's evidence that Roy Roper, the alleged owner of the money, was, prior to and during the time the money was entrusted to the defendant, laboring under an indictment in the United States District Court for the Northern District of Georgia for the offense of conspiracy. The defendant, during the time, was a friend of Roper and also a member of the House of Representatives from Dawson County, and was also at the time a candidate for Senator in the General Assembly of Georgia. Roper asked the defendant to assist him in obtaining the transfer of the conspiracy case from the Atlanta Division to the Gainesville Division of the United States District Court. The defendant agreed to assist in obtaining the transfer, if possible, on purely a friendship basis. At the time of thus agreeing he advised Roper that it would probably cost $1000 to obtain the transfer. Thereupon the defendant advised Roper to accompany the defendant to Gainesville to discuss the matter with attorney Stephens, a lawyer in Gainesville, for the purpose of employing Mr. Stephens as an attorney in the matter. Subsequently the defendant and Roper made contact with Mr. Stephens in his office in Gainesville. Mr. Stephens agreed to assist, as an attorney, in making an effort to have the case transferred from the Atlanta Division to the Gainesville Division of the United States District Court, since it would be more convenient with less expense involved in attending court in Gainesville. Georgia, than in Atlanta, Georgia. Mr. Stephens agreed to do this for $500 if he was successful in connection with the transfer. In Gainesville, Roper gave to the defendant $500 to be paid to Mr. Stephens as his fee. Mr. Stephens, if he was successful in obtaining the transfer, was to retain the $500. If he was unsuccessful in obtaining the transfer, he was to retain $100 and return the remaining $400 to Roper. Mr. Paul Carpenter had been, and was at the time of this contact with Mr. Stephens, representing Roper in the conspiracy case in Atlanta, Georgia. Mr. Stephens, within a short time, came to Atlanta for the purpose of conferring with Mr. Carpenter, and it was agreeable with Mr. Carpenter for Mr. Stephens to assist in obtaining the transfer, and Mr. Carpenter was to receive an additional fee also. The defendant and Roper and Mr. Stephens and others, in an effort to obtain the transfer, conferred with the office of the United States District Attorney, but neither the District Attorney nor the Judge of the United States District Court would agree to the transfer. Finally, the defendant was allowed to enter a plea of guilty in the conspiracy case, and upon the payment of a $5000 fine was to serve the sentence under probation. When the defendant and Roper were on their way home in Dawson County, Roper suggested that they go to Mr. Stephens' office and get the $400 which had been left with Mr. Stephens, since the transfer had not been consummated. In response, the defendant suggested that he wished to go home and not go by Mr. Stephens' office, as the money could be gotten from Mr. Stephens at any time. They did not go by Gainesville that day. The next day the defendant went to Mr. Stephens' office where Mr. Stephens paid the $400 to the defendant. The defendant put this $400, which he received from Mr. Stephens and which he was to deliver to Roper, in the inside pocket of his coat. At the time Mr. Stephens delivered the $400 to the defendant, an attorney, Sidney O. Smith Jr., was in the office of Mr. Stephens. In the presence of Mr. Stephens, the defendant paid Mr. Smith $150. The defendant did not have enough change to pay Smith the $150, and stated in the presence of Mr. Stephens and Mr. Smith that he would have to borrow $5 from the $400 which Mr. Stephens had given him for Roper. Thereupon he reached in his coat pocket and took $5 from the $400, and paid it to Mr. Smith. The following morning Roper went to the home of the defendant to get the $400. The defendant refused to deliver it to him, stating that he had to pay the $400 out, and that he also had to pay $600 to "a secret man." Roper testified that he did not owe the defendant any sum of money, and that he did not authorize or know anything about the payment of the $600 to a secret man.
The defendant in his statement said in effect that he was Representative of Dawson County, and when the boys got in trouble, they usually went to someone in politics, and that he assisted Roper, at Roper's request, in getting a fine parole; that Roper agreed to pay him $1000; that he went to work on the case, called his friends in different parts of the State, and got them to go to Roper's enemies who were trying to put Roper in the penitentiary; that he made a trip to Carpenter's office, and that Carpenter said a fine had been arranged; that when Roper and the defendant left Atlanta on the way back to Dawsonville, the defendant suggested that they go by and pick up the money from Mr. Stephens, and that Roper said, "That is your money, you can get that any time." Thereafter, Roper went to the defendant's home to see about selling an automobile, at which time the defendant inquired of Roper when he could take care of the $600 on the $1000 which Roper owed the defendant. Roper got mad. The defendant stated that it was not just the $400, but Roper was hurting him in his political race. The defendant introduced other evidence in sharp conflict with that of the State, tending to show that Roper had agreed to pay the defendant $1000 for his influence and work in getting a fine.
1. In putting the array of jurors on the defendant, it was ascertained that there were only 40 jurors in court who were not disqualified for cause. The court inquired of the defendant's counsel if they desired a full panel. Counsel answered in the affirmative, whereupon the court requested that the jury box be brought in, since the defendant desired a full panel. The court proceeded in open court to draw from the jury box a number of jurors and ordered the sheriff to summon them. Some of the jurors resided in the city limits of Gainesville and nearby, and others farther away. The sheriff proceeded to summon the jurors as he came to them, and not as they were drawn from the box. When the panel was filled, a challenge to the array was filed by the defendant because the jurors were not summoned as drawn, and because the defendant was entitled to have them summoned as drawn, or their absence legally accounted for. The court overruled this challenge, and to the overruling of this challenge the defendant filed exceptions pendente lite and assigns error thereon. This point has been ruled adversely to the defendant in Bennett v. State, 67 Ga. App. 384 ( 20 S.E.2d, 193). Counsel for the defendant states, however, that, at the time he made this challenge and at the time he filed exceptions pendente lite, he was not familiar with the Bennett case, but counsel insists that for the court to call for the jury box in such circumstances as here, and state that the defendant's counsel desired a full panel, was prejudicial to the defendant to such an extent that the verdict and judgment should be reversed. The statute seems to contemplate that all such proceedings be public, and we cannot see how it could possibly have prejudiced the defendant. This contention is without merit.
2. As to the general grounds, we have set out the evidence somewhat in detail. While it is sharply in conflict on some material issues, these were jury questions and were resolved by the jury against the defendant. Some of the special grounds are involved in the general grounds, and we will deal with them in their order.
3. Special grounds 1 and 2 are to the effect that the venue of the offense charged was not proven to be in Hall County as alleged, but that it took place in Dawson County. The money was delivered by the defendant to Mr. Stephens for Roper in Hall County. The defendant, at the request of Roper, received the money from Mr. Stephens for Roper in Hall County, and he converted at least $5 of the money in Hall County and paid it to Mr. Smith. There is no contention that he did not appropriate the balance of $395 in Hall County. There is no conflicting evidence as to venue. In such event slight evidence only is necessary to prove venue. Baker v. State, 55 Ga. App. 159 (1) ( 189 S.E. 364), and citations. See also Flanigan v. State, 83 Ga. App. 835 ( 65 S.E.2d 37), and citations. These grounds are without merit.
4. Special grounds 3 and 4 are to the effect that the evidence showed that the money in question was entrusted to the defendant by Mr. Stephens and not by Roper. We do not think that this contention is tenable, for the reason that Roper requested the defendant to obtain the money from Mr. Stephens for Roper. The defendant did obtain the money from Mr. Stephens, but did not deliver it to Roper. This is analogous to where a man is entrusted with a check for the purpose of obtaining the money from the bank and the money is obtained on the check and converted. There are numerous decisions to the effect that, in such an event, the one who cashes the check and receives the money for a specific purpose for the owner, and fails to so use the money, converts it to his own use. See Brandt v. State, 71 Ga. App. 221 ( 30 S.E.2d 652).
5. Special ground 5 assigns error because, when Frank Welchel, Esq., was on the stand, counsel for the defendant propounded to the witness, a question to the effect: Did the prosecutor, Roper, go to the office of the witness and discuss with attorney Welchel the case pending against Roper in the United States District Court? Over objections of the State, the court excluded this testimony. It is stated that the attorney expected the witness Welchel to answer that Roper did go to Welchel's office and discuss the case. It is stated that the testimony thus sought to be elicited was material, and that the ruling of the court was prejudicial and harmful to the defendant's case for the following reasons: (1) the prosecutor, Roper, had previously testified that he had not gone to attorney Welchel and discussed his case, and this evidence should have been admitted for the purpose of impeachment; (2) it was further admissible for the purpose of showing that Roper was doing all he could to get a settlement of his case in the United States District Court; and (3) Roper had been to others before he came to movant to get help. We cannot agree that the assignments in this ground are meritorious. For the prosecutor to discuss the suit pending against him with an attorney, it occurs to us, has no bearing upon the issue involved and sheds no light upon it. See McKinney v. Darby, 56 Ga. App. 621, 624 ( 193 S.E. 594); Luke v. State, 184 Ga. 551 ( 192 S.E. 37).
6. In special grounds 6 and 7 error is assigned because the court failed to charge the law pertaining to the credibility of witnesses as embraced in the Code, §§ 38-1804, 38-1805, and 38-1806. It is the contention of counsel for the defendant that the court should have charged the law on impeachment of witnesses without a written request to do so. In the argument of learned counsel our attention is called to many decisions, among them Watson v. State, 118 Ga. 83 ( 44 S.E. 824) in which it is contended that the court recognized that in some cases this principle should be charged without a written request. We do not think that this decision is authority for the holding that these assignments of error are good. Counsel cites many other decisions, many to the effect that a trial court should give to the jury appropriate instructions on every substantial issue in the case presented by the evidence, and a failure to do so is cause for a new trial, and that the controlling issues in every case should be given in charge to the jury by the trial judge without a written request. Our attention is called to Dorsey v. State, 126 Ga. 633 ( 55 S.E. 479); Walker v. State, 122 Ga. 747 ( 50 S.E. 994); Holland v. State, 17 Ga. App. 311 ( 86 S.E. 739); McLendon v. State, 14 Ga. App. 737 ( 82 S.E. 317). While the principles of law to which our attention is called are sound, we do not think that they fit the facts of this case, because it is not reversible error to fail to charge the law of credibility of witnesses without a written request. Baker v. State, 14 Ga. App 578 (81 S.E. 805); Shewmake v. State, 71 Ga. App. 349 ( 30 S.E.2d 816). The assignments of error in this special ground show no reversible error.
7. Special ground 8 assigns error on the failure of the court to charge, without a written request, the law of circumstantial evidence. This rule does not apply except in those cases where the evidence is wholly circumstantial. By reference to the statement of facts as shown by the evidence, this case does not depend upon circumstantial evidence alone. It is almost wholly direct evidence. Curtis v. State, 72 Ga. App. 857 ( 35 S.E.2d, 364). 310); Chancey v. State, 73 Ga. App. 283 ( 36 S.E.2d, 364). There are numerous other cases to the same effect. This ground is without merit.
8. In special ground 9, exception is taken to an excerpt from the charge of the court as follows: "However, if you believe from the evidence in this case that the defendant did take or use this money for his own use, that is, if you believe under the evidence that at the time he had hope or expectation of replacing it, that cannot be considered as an excuse for violating the law. When he takes the money which has been entrusted to him by another, he deprives that individual of his domain over it, knowing that he has no legal right to do so, and every man is presumed to know the law, but guilty intent is necessary and must be proved under the circumstances." It is averred that this excerpt was reversible error: (a) because it was an expression of opinion; (b) because it omits the word "fraudulent"; (c) because it was misleading to the jury, in that it instructed them that the defendant could be found guilty whether the taking was fraudulent or not; (d) because it was confusing, in that it instructed the jury that the defendant could be found guilty if he took the money whether he did so with a fraudulent intent or not.
When we view this excerpt in the light of the whole charge, we do not consider it cause for a reversal. The court in the course of its charge gave in its entirety Code § 26-2809; then the court also called the jury's attention correctly to the three essential elements of larceny after trust: (1) the bailment, (2) the purpose of the bailment, (3) the fraudulent conversion. The court further stated immediately in this connection that the State must prove these essentials by evidence in the manner in which the court had instructed the jury to do. Further on in the charge, the court specifically called the attention of the jury to the fact that the State must prove the intent to steal and that, unless the State had proven that charge and these essential elements, the jury could not convict the defendant. The court further charged that, if "he in good faith retained the money and believed he had a right to do so, he would not be guilty of larceny after trust, for in such case there would not be fraudulent conversion, which is a necessary element under larceny after trust." Then it was that the judge charged the except of which complaint is made. The court had already instructed the jury as to the burden of proof which rested upon the State and concerning the weight of the defendant's statement. It thus appears that the charge as a whole was correct, clear and full, and not subject to any errors assigned.
The court did not err for any of the reasons assigned in the exceptions pendente lite, nor in denying the motion for a new trial.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.