Chaffin v. State , 5 Ga. App. 368 ( 1908 )

Hill, C. J.

(After stating the foregoing facts.)

1. The respective contentions of the State and the defendant, on the issue as to whether the defendant was employed by the prosecutor to saw the lumber for him, or whether the arrangement between the two was in the nature of a partnership, the property of the one to offset the labor of the other, and both partners to be the owners of the sawed lumber, were fairly and clearly submitted in the charge of the court to the jury, and the issue thus submitted was found against the contention of the defendant; and the evidence in behalf of the State is sufficient to warrant the conclusion of the jury on this question.

2. We do not think there was any material variance between the allegation and the proof relating to the bailment. The indictment alleged that the defendant had been entrusted by the prosecutor with 5,000 feet of sawed pine lumber, of the value of $50, for the purpose of applying the same for the use and benefit of the owner. The evidence showed that the defendant was entrusted by the proscutor with his timber, out of which the lumber was to be sawed, and that the defendant was to hold possession of-the sawed lumber for the prosecutor. The evidence does not contradict the allegation as to the bailment, but only adds to it. The timber was also entrusted to the defendant by the prosecutor, but, when the defendant had partially completed the purpose of the bailment in sawing the timber into lumber, the trust reposed in him by the prosecutor attached also to the sawed lumber. The present case is analogous-in principle to that of Barron v. State, 126 Ga. 92 (54 S. E. 812). The defendant in that case was indicted for and convicted of the offense of simple larceny, but the Supreme Court held that the-evidence upon the part of the State showed that the offense was-larceny after trust, the evidence being that the prosecutor was the owner of some sheep, which he had purchased from the defendant and had left in the defendant’s possession as his (the prosecutor’s) property, engaging the defendant to shear the sheep and bring the wool to town for the purpose of delivering it to him; and that the defendant did shear the sheep, but, instead of taking the wool to the prosecutor, sold it and converted the proceeds to his own use. Under these facts, the Supreme Court held that the relation of the parties was that of bailor and bailee, that the possession of the sheep was in the'defendant and the possession of the wool was in the defendant, and if, under these' circumstances, the defendant' committed a larceny of the wool, the offense would be larceny after trust.

Under the facts of this case, the timber was in the possession of the defendant, and the sawed lumber was also in the possession of the defendant. Both timber and lumber were the property of the prosecutor; and the defendant was employed, according to the evidence for the State, by the prosecutor to saw the timber into lumber and hold the lumber thus sawed, as the bailee of the prosecutor. In other words, the bailment in question included both timber and lumber, and it was immaterial that the evidence proved both, while only one was charged. If A employs B to gin A’s seed-cotton in A’s gin, and B does so, but, after ginning it, fraudulently converts the lint cotton to his own use, and the indictment alleges that the bailment was of the lint cotton and the evidence shows that A first entrusted B with the seed-cotton, from which to gin the lint cotton, would this be a material variance ? In such case would hot the bailment be of both seed-cotton and lint cotton? We think this case in principle is fully controlled by the decisions of this Court in Taylor v. State, 2 Ga. App. 723 (59 S. E. 12), and in Hagood v. State, ante, 80 (62 S. E. 641)1 We conclude that the allegation in the indictment that the defendant had been entrusted with a certain quantity of sawed lumber, the property of the prosecutor, to be applied for the use and benefit of the owner, is established by the evidence, which shows that the defendant was entrusted with the timber by the prosecutor, to be sawed into lumber, and that he fraudulently converted the lumber to his own use.

The exceptions made to certain parts of the charge relate to the question of variance above considered, and it is unnecessary to ■ decide them. Judgment affirmed.

Russell, J., dissents.