Ramer v. State , 76 Ga. App. 678 ( 1948 )

1. Every indictment will be deemed sufficiently technical and correct which states the offense in the language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury. Code, § 27-701; Knowles v. State, 166 Ga. 182 (1) (142 S.E. 676); Lenhardt v. State, 37 Ga. App. 41 (138 S.E. 590).

2. An indictment, based on the act of the General Assembly of 1941 (Ga. L. 1941, p. 480, Code, Ann. Supp., § 26-2812), which fails to allege the terms of the contract forming the basis on account of which the payment of money is alleged to have been made, which also fails to allege the amount of money the defendant was to receive under such contract, and which does not stipulate the amount of money that the defendant did use toward the improvement of the realty in question, is not subject to special demurrer on these grounds. The gist of this offense is the fraudulent conversion of the money, and the rules of law which apply to civil actions on written contracts are not here applicable.

3. Venue is sufficiently established in a case where the indictment charges fraudulent conversion of money to have taken place in a certain county, where the defendant makes a solemn admission in judicious that the payments were made to him as charged in the indictment, and where such admission as to the place in which the payments were made is corroborated by slight evidence. See Kicklighter v. State, 76 Ga. App. 246 (45 S.E.2d 719); Towler v. State, 24 Ga. App. 168 (3) (100 S.E. 42).

4. A refusal to direct a verdict is not error in any case. See Rogers v. Beavers, 76 Ga. App. 16 (45 S.E.2d 74), and cases there cited.

5. Although the evidence might have authorized a different verdict, where there is enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code (Ann.) § 70-202, catchwords, "Any evidence".

DECIDED MARCH 19, 1948. Jesse E. Ramer was indicted at the July term, 1947, of the Superior Court of Hall County, for a felony by reason of facts alleged in the indictment substantially as follows: That the accused on November 12, 1945, in Hall County, did unlawfully, after having entered into a contract on August 8, 1945, with A. G. Reed, whereby the said accused agreed to build and construct a house upon the property of A. G. Reed, (said property being here fully described), who, at the request of the accused, did pay the said accused on October 6, 1945, the sum of $1000; on October 13, 1945, the sum of $500; on October 20, 1945, the sum of $500; on October 27, 1945, the sum of $500; and on November 3, 1945, the sum of $500; said sums being paid to the said accused to be used for the aforesaid improvement on said property; and said accused with intent to defraud said A. G. Reed, did use the proceeds of the aforesaid sums of money paid to him for other purposes, to the grand jury unknown, than to pay for labor and services performed on the materials furnished by his order for this specific improvement of said described property; while the following amounts, for which the accused was then and there liable and had become liable for such labor, services, and materials used in such improvements aforesaid, then and there remained unpaid, to wit: to J. D. Hale $50, to J. P. Peek $18, to Dave Crow $45, to Claud Payne $275, to J. L. Thompson $90, to Davis Washington Company $296.43, and Chambers Lumber Company $95.12, which said amounts, totaling $869.55, the said A. G. Reed has had to pay and has lost, contrary to the laws of said State, etc.

The defendant demurred generally to said indictment, on the grounds that the allegations therein do not charge any offense under the law, and under such allegations the defendant is not guilty of any offense under the law; and that said indictment is insufficient to place the defendant upon notice of what crime he is charged with and what crime he must defend against. One of the grounds of the demurrer is a special ground to the effect that the indictment does not set out the terms of the alleged contract; it fails to stipulate the amount of money which the defendant was to receive under said contract, and the amount of money which the defendant did use in the construction of said house. The court overruled the demurrer on each and every ground, and exceptions pendente lite were preserved to this ruling. The defendant made a solemn admission in judicio that the payments were made, as stated in the indictment by the prosecutor, Allen G. Reed, to the defendant, Jesse Ramer, on the dates and in the amounts alleged in the indictment.

Construing the evidence most strongly in favor of the verdict, the jury trying the case was authorized to find facts as follows: that the prosecutor and the defendant entered into a contract for the improvement of certain real property located in Hall County, said improvement to consist of the construction of a house to be situated thereon; that the defendant received from the prosecutor in said county on the dates alleged in the indictment the sums of money alleged, totaling $3000, to be used to pay for labor and materials in the construction of the house in question; that, prior to the completion of the house, the defendant cashed a $500 check representing one of the payments made to him by the prosecutor, as alleged in the indictment, and gave $200 of this money to one Ben Ingram; that the defendant was indebted to Ben Ingram for work done for him on a contract other than the one here involved; that at the time the $200 was paid to Ben Ingram there were outstanding obligations, consisting of labor and materials that had been incurred by the defendant on the house in question, totaling the sum of $869.55; that before the building was completed the defendant absconded leaving said bills unpaid, and that said bills were subsequently paid by the prosecutor. The defendant made a statement, which under our law the jury was authorized to believe or disbelieve in whole or in part, and in which he said in substance that he put the entire $3000 paid to him by the prosecutor into the building in question and also additional money; that he put a total of $3464.80, representing labor and materials, into the building, $300 social security, $288 withholding tax and $250 State compensation; that he took the contract too cheaply; that there was no money left of the money advanced to him with which to pay for the labor and materials left unpaid by him on the house; and that, although he did advance Ben Ingram $200 of money paid to him by the prosecutor, which he owed the said Ingram on a contract other than the one here involved, yet he had more than accounted for all the money the prosecutor had paid before paying out this $200. He introduced in evidence bills totaling $3464, and stated that the materials and labor represented by these bills went into the building in question and were paid for by him out of funds received by him from the prosecutor as far as these funds would go, and that he paid the overplus out of funds of his own.

The jury returned a verdict of guilty and fixed the punishment at not less than one or more than two years in the penitentiary. The court imposed sentence as for a misdemeanor. The defendant thereupon filed a motion for new trial on the general grounds, which was later amended by adding special grounds 4 and 5, contending that the venue had not been proved, and that the trial court erred in refusing to direct a verdict in his favor.

On the judgments overruling the demurrer to the indictment and overruling the motion for new trial as amended error is assigned. 1. The indictment in the instant case is couched in substantially the language of the Code. It shows plainly that the nature of the offense charged may be easily understood by the jury. Every indictment will be deemed sufficiently technical and correct which states the offense in the language of the Code, or so plainly that the nature of the offense charged may be easily understood by the jury. See Code, § 27-701; Knowles v. State,166 Ga. 182 (1) (142 S.E. 676); Lenhardt v. State, 37 Ga. App. 43 (138 S.E. 590).

2. The rule of law, that written contracts must be pleaded in cases where the action is based thereon, essentially applies to civil cases. In a criminal action where the gist of the offense is the fraudulent conversion of money, the contract forming the basis on account of which the payment of the money is alleged to have been made, is only evidence of the contractual relationship existing between the prosecutor and the defendant. It does not occupy the same legal position as in a civil action based on such a contract. Therefore a special demurrer to the indictment on the grounds that the terms of the contract are not set forth, and also the amount of money the defendant was to receive under the same is not set forth, is without merit. And for the reasons stated in the first headnote and division of this decision, a special demurrer to such indictment, on the ground that the same fails to allege what amount of money the defendant used toward the improvement of the realty in question, is also without merit.

3. The act of the General Assembly (Ga. L. 1941, p. 480, Code, Ann. Supp., § 26-2812) provides as follows: "Any architect, landscape architect, engineer, contractor, subcontractor, or other person who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or, materials furnished by his order for this specific improvement, while any amount for which he may be or become liable for such labor, services, or materials remains unpaid shall be guilty of a felony and upon conviction shall be punished by imprisonment for not less than one year nor more than five years, or upon the recommendation of the jury, or in discretion of the trial judge, punished for a misdemeanor. A failure to pay for the material or labor so furnished shall be prima facie evidence of intent to defraud."

The compilers of the unofficial supplement or pocket parts have properly classified this act under Chapter 28 of Title 26 of the Code, which deals with the subject of criminal embezzlements and fraudulent conversions. While the act now under consideration does not appear to have been heretofore construed by either of our appellate courts, the venue in this type of criminal prosecution has often been held to be in the county where the fraudulent conversion took place. In Price v. State, 76 Ga. App. 283 (45 S.E.2d 462), in connection with a prosecution under Code § 26-2809, being a statute of the same general classification as that here under consideration, this subject is very comprehensively treated. There the evidence disclosed that the defendant procured money from the prosecutor in Fulton County to take to Alabama and invest in automobiles, the profit or loss to be shared equally. The defendant took the money to Alabama and converted the same to his own use. The case holds that the jury was authorized to find that the intent to defraud was conceived at the time the money was accepted by the defendant from the prosecutor in Fulton County, and that, therefore, the venue was properly laid in that county. Here the defendant made a solemn admission in judicio that he accepted the money in Hall County. This was corroborated by evidence that the land upon which he was to build the house is situated in Hall County. Other evidence such as the payment of $200 to Ingram, the flight of the defendant, and his leaving unpaid the outstanding bills referred to herein, authorized the jury to find that the fraudulent conversion took place at the time the $500 was paid, out of which Ingram received $200. Venue is sufficiently established, in a case where the indictment charges fraudulent conversion of money to have taken place in a certain county, where the defendant makes a solemn admission in judicio that the payments were made to him as charged in the indictment, and where such admission as to the place in which the payments were made is corroborated by slight evidence. See Kicklighter v. State, 76 Ga. App. 246 (45 S.E.2d 719); Towler v. State, 24 Ga. App. 168 (3) (100 S.E. 42).

4. The fourth headnote requires no elaboration.

5. The evidence here was sufficient to support the verdict. The defendant received the money to be put into the house. He paid $200 of that money in settlement of a debt which he owed, independent of the construction of the house in question. He then absconded leaving unpaid $869.55, representing labor and materials for which he was obligated and which he failed to pay, and which were paid by the prosecutor. When these facts appeared, the burden of proof shifted to the defendant to account for the money which he had received from the prosecutor, by showing that it went into the building in question, not beyond a reasonable doubt or by a preponderance of the evidence, but to the satisfaction of the jury. He sought to carry this burden by introducing in evidence receipted bills for labor and materials totaling $3464.80. However, the authenticity of these bills and where the labor and materials went which they represented depended solely upon the statement of the defendant. The jury had the right to believe this statement in preference to sworn evidence. Had it so believed the same, the defendant's effort to carry the burden of accounting for the funds would have been successful. But the jury was also authorized to disbelieve the statement of the defendant and this it elected to do. Although the evidence might have authorized a different verdict, where there is enough to support the verdict found, the judgment of the trial court refusing a new trial on the general grounds will not be disturbed. See Code (Ann.), § 70-202, and annotations under catchwords, "Any evidence".

The judgments of the trial court overruling each and every ground of the demurrer to the indictment, and overruling the defendant's motion for new trial as amended, are without error.

Judgment affirmed. MacIntyre, P. J. and Gardner, J. concur.