McElhannon v. State , 99 Ga. 672 ( 1896 )

Bumpkin, Justice.

The indictment in this case charged, in one count, that McElhann'on, who was 'the bookkeeper of the Banners’ Alliance Warehouse & Commission Company, a business corporation, fraudulently mutilated and destroyed its books, with the intent to defraud and injure it. Another count alleged an intention to defraud and injure certain named individuals. At the trial, the corpus delicti was shown, and a number of 'circumstances proved 'tending to fix the crime upon the accused. The theory principally relied upon by the State was: that tire accused, having fraudulently ap-propriated to 'his own use & large ‘amount of money belonging Ho the corporation, some of which should have been paid over to the persons named in 'the second count of the indictment, earned off 'and destroyed the books to prevent a discovery of his defalcation. There was a verdict 'of guilty, and the accused made a motion for a new -trial, to the overruling 'of which he -excepts. The grounds of this morion are set forth in the official report.

1. The corporation did not itself appear as prosecutor.' Indeed, the accusation against the -accused is in the form of a special presentment by the grand jury. It is quite reasonable, however, to suppose 'that- the stockholders were interested in the result of the prosecution, -and presumably were, to a greater or less extent, prejudiced or biased against 'the accused. Experience teaches 'that the victim of any criminal offense is rarely in sympathy with one charged with its perpetration; and it is quite certain that the former would in no case be 'competent 'to serve 'as a. juror up-on the trial of the latter. One whose property has been stolen will not be allowed to participate as a juror in the trial of the alleged thief. All this is cl-eax enough; but the policy of -the law goes further and -extends the disqualification •thus affecting the injured person to his kindred, by blood or marri'age, within a certain prohibited degree, and this court has held that the disqualification went so far as to exclude a third cousin of the prosecutor in a criminal ease from sitting on the jury. Ledford v. The State, 75 Ga. 856. If the corporation had, in this case, been the actual prosecutor, 'there would be no difficulty at all in holding that neither its stockholders nor persons related to them as closely as the jurors complained -of by the plaintiff in error, would have been competent to serve upon the. jury. "We do •not think it makes any substantial difference that the corporation was not the formal prosecutor. It was -the person injured, and therefore occupies, practically, 'the position of a party at interest. The ground of disqualification as to the jurors in question 'arises upon the fact of their relationship to persons having an interest in the case. See Georgia Railroad v. Hart, 60 Ga. 550. The fact that the jurors were ignorant of the relationship existing between themselves and some of the stockholders until after the 'trial, is immaterial. “It would be too> dangerous a predecent to ■ allow 'the juror to assert 'that he was ignorant of the relationship till after trial.” 'Ledford’s ease, supra, page 858. We are aware of the difficulty of always ascertaining in advance who may be related to the stockholders of a given corporation; but the inconvenience thus arising cannot be urged as a sufficient reason for setting aside what clearly appears bo be the settled policy of our law upon this subject.

2. It was 'competent for 'the State to show the fact that shortly before the disappearance of the books, the accused had been seen gaming. One of the alleged motives for the destruction of the books was a purpose on his part to conceal a misappropriation by him of the company’s funds, and the fact that he was hazarding money in games of chance might throw some light upon the question as to whether or iiot such a motive existed. When, however, a witness offered for 'the purpose of proving that the accused had been guilty of gaming, on 'Cnoss-examination declined to answer certain pertinent questions, on the ground that so doing would tend 'to criminate himself, and it appeared that 'the design of these questions was to show the extent of the witness’s knowledge upon the subject, 'and, perhaps, also- 'to test the sincerity or accuracy of his testimony, it was the right of the accused 'bo have all of the witness’s testimony on this subject ruled out. Pinkard v. The State, 30 Ga. 757.

3. The accused, amlong other things, contended tba.'t there had been no. misappropriation of the .funds of 'the corporation, and, Consequently, that there was no ground in fact for the alleged motive on bis part. In support of this contention, the testimony of J. H. Rucher, which the court rejected, ought to have been admitted.

4. It appears that one Mell, the manager of the corporation, was actively pressing the prosecution, 'and that the conviction was largely based upon his testimony as a witness. The accused insisted that Mell had mismanaged the affairs of the corporation,' had engaged, in speculation with the company’s funds; and that considerable losses had thereby been sustained. Evidence 'tending to prove the existence of 'these 'alleged facts was offered by the accused, for the purpose of showing a motive on the part of Mell for destroying the boohs. W-e see no good reason why this evidence should not have been received. Without expressing •or intimating any opinion 'as to' its probative value, we think it was the undoubted right of the accused, to prove, if he could, that the crime in question had been Committed by cne other than himself; and it was certainly a 'step in this direction to show a motive on the part of 'that other pers'on for destroying evidence tending to dhow bis own unsuccessful or improper management of the company’s business. The testimony of the witness Hancock was pertinent in this connection, 'as was also that of Kucker, mentioned above. This evidence was also relevant and admissible with reference to the credibility of Mell as a witness, as it had some hearing upon his interest, in toe case, 'and could have been urged, whether successfully or not we do not undertake to say, as manifesting a disposition on his part to shield himself from the consequences of his own alleged misconduct.

5. Certainly, there was no error in allowing the State to prove that the accused, as the bookkeeper of the corporation, had given a bond for toe faithful discharge of his duties in that capacity. His exact relationship to- the corporation, and toe consequences which would naturally flow from a breach of the duties he ¡owed to it, were relevant upon the question of motive.

6. It seems that 'the ¡accused desired to 'prove that a suit was pending against Mell and the sureties ¡on his bond <as manager, and the motion for a new 'trial alleges error in refusing to allow the 'accused “to introduce the record of said suit, which, briefly stated, showed, os defendant insists, ■that the said C. I. Mell was being sued for a breach of said bond, on tire civil side ¡of the court, for the very thing that this defendant was being prosecuted for.” The record thus offered is not set forth, nor does the motion contain a sufficient description of it to 'enable this court to determine whether or not it was, “as defendant insists,” pertinent and material. Not 'Only is the description of the evidence offered entirely too meager, but the ¡assignment of error upon its rejection is fatally defective, in that it does not undertake to state what in fact the record would actually show, but merely what the accused contended it showed. The effect, therefore, of the judge’s certificate to the correctness of the recitals in the motion is merely to state that, so far as relates to this particular ground, certain evidence was rejected which, in the opinion of the accused would show the ¡existence of -a state of facts he desired to prove. It is apparent that this court cannot intelligently pass upon this matter; for it cannot be 'ascertained whether ¡the ¡trial judge based his mling upon the ground that 'the record in question failed to show what the accused contended it did, or upon the ground that, conceding its evidentiary effect to be a3 ivas insisted, it was nevertheless irrelevant and immaterial.

1. The objection of the accused to 'the testimony of IT. C. Davis was well 'taken, and ought to have been sustained. The statement of 'a ■witness that he “liad several facts” which, in connection with what Gap tain Dope and other gentlemen “thought” pointed to McElhannon as the guilty party, was at last no more ¡than a bare statement of an opinion entertained by the witness and the other persons referred to by liim, and was certainly inadmissible for any purpose whatsoever. Jtodgmeni reversed.