Opinion
32938.
DECIDED MAY 20, 1950.
Larceny after trust; from Floyd Superior Court — Judge Nichols. December 23, 1949.
Mrs. Charles L. Camp, for plaintiff in error.
W. T. Maddox, Solicitor-General, contra.
Where, although the evidence be construed most strongly in favor of the verdict and the defendant's statement most strongly against him, it appears from the evidence and the defendant's statement only that the prosecutor and the defendant entered into a contract of purchase and sale whereby the defendant was to deliver to the prosecutor an automobile at an agreed price at a specified time, and that the defendant required of the prosecutor a $50 deposit, but, having no change, the prosecutor gave the defendant $100, saying, "I haven't got the change, just got a hundred dollar bill but I would just as soon pay now as any time, just so I get a car," and it appears that on the same day the defendant sought to borrow $100 from the prosecutor to pay upon some unspecified obligation of the defendant, and the prosecutor refused to lend the defendant the money, but said, "I will give it to you on the car," and the defendant said, "All right," and at the time of the trial the defendant has not delivered the automobile — no inference is authorized to be drawn, from the evidence or the defendant's statement, that the defendant was entrusted with the money for any purpose for the benefit of the prosecutor other than under the terms of the contract of purchase and sale, or that the prosecutor intended anything but that the money should be the defendant's as a payment in advance on the automobile contracted for; and even though the defendant failed to deliver the car in accordance with the agreement, there is nothing in the evidence or the defendant's statement, taken separately or together, which would authorize the verdict of guilty in this case under an indictment for larceny after trust. Wylie v. State, 97 Ga. 207 ( 22 S.E. 954); Huff v. State, 79 Ga. App. 717 ( 54 S.E.2d 446). Consequently, the court erred in overruling the motion for a new trial.
The facts of this case clearly differentiate it from the case of Price v. State, 76 Ga. App. 283 ( 45 S.E.2d 462).
As we have said, the evidence does not authorize a verdict of guilty of larceny after trust. We do not pass upon the question of whether this evidence might authorize a verdict of guilty of some other criminal offense.
Judgment reversed. Gardner and Townsend, JJ., concur.
DECIDED MAY 20, 1950.
The defendant, C. W. Tant, was indicted, tried, and convicted for larceny after trust. His motion for a new trial, based solely upon the general grounds, was overruled and he excepted.
The evidence introduced upon the trial was substantially as follows. G. E. Whelchel, the prosecutor, testified in part: "I know the defendant Mr. Tant. I had some dealings with him, it has been so long I would not be positive that it was in the summer of 1948, it might have been about the year 1947 when we made the trade. The trade was made over here right in front of the McCall Hospital, in Floyd County, right across the river. I gave Mr. Tant a hundred dollars at the time on a Ford car. I was to get a new Ford car for $1750. Mr. Tant told me that. I have known him previously. I had previously had dealings with him. He had come up four or five years before. I had bought two cars from him. . . He told me when I got the last car, `If you ever want a car, see me. I will help you out. Sure appreciate your business.' My wife got sick and I brought her to the hospital over here. I was out of a car. . . On Sunday afternoon about two or three weeks after that my brother was over there and he and I were on the street waiting for a bus and Mr. Tant came along. He said, `I sure am sorry about your bad luck. I sure hate that.' He always thought well of me and my wife. Said, `If you had let me know, I could let you have a car a month ago.' I said, `What price?' He said, `What kind do you want? I can get a DeLuxe four-door Ford for $1750. It will come from Gadsden, Alabama. But I've got to have a deposit.' I said, `When?' He said, `I will have it over here on the street Tuesday evening, fifteen minutes before five o'clock.' I said, `How much deposit do you want?' and he said, `We would want enough to pay for coming over here, if something was to happen.' I said, `How much?' and he said, `Fifty Dollars.' I said, `I haven't got the change; just got a hundred dollar bill but I would just as soon pay now as any time, just so I get a car.' I gave him a hundred dollars. That was about four o'clock in the evening. That night about eight o'clock, he came and called me out of the room at the hospital. Said he was in a little trouble and wanted a little more money. Said he couldn't get a check cashed. Wanted to know about me loaning him some money. I said I had none to loan. He said, `I will pay you back in the morning.' I said, `Don't make no difference. I will give it to you on the car.' He said, `All right.' So he took the money and went off. I never saw him for about eight or ten days. He said, `I sort of got in a little trouble over there. We can pay the money back or get another car in the next shipment. I guarantee it in at least two weeks.' I said, `I would rather have my car.' I never heard more from him for three months. Then I got a telegram from him sent from South Georgia some place, can't remember where. . . The telegram was from C. W. Tant. So I never did see him no more. Finally went over and swore out a warrant for him. Brought him in court. I come down and went before the grand jury. I let him have two hundred dollars in all. I let him have the two hundred dollars for the purpose of getting that car. Mr. Tant was going to get the car for me. He never did get the car for me. He has never returned but fifty dollars of the money. He returned that something like three months ago when court was set down here. He still owes me one hundred and fifty dollars. I told him when we were talking about it with the other solicitor. Tried to settle it. I said, I could not settle a criminal case. We talked the matter over. I said, `I want my money.' He has never paid the rest of the money. He ain't never brought the automobile to me. I think that was in 1947." On cross-examination the same witness testified: "I would not be positive when I gave him the money, but I think it was 1947. It was on a Sunday evening when I gave him the first hundred dollars, to the best of my recollection, it was in 1947. I know I have not got the money back. The court knows that I let him have the two hundred dollars, I swore I let him have it. I ain't going to tell the exact date. I let him have the money on Sunday, and he was to deliver the car to us, and I have to have the other money and hand it to him. I don't have a receipt for the money. I wanted the car for my personal use. . . I don't know whether this two hundred dollars was over the list price of Ford Sales at the Motor Company, I was just trying to get a car. I tried to get one from a dealer, they said they couldn't get one. My recollection is, that I went before the grand jury something like twelve months or a little better after this transaction. I think that I had give this man the whole two hundred dollars before I went before the grand jury. . . And I told them when we first made the trade on the street; I said I gave him one hundred dollars and he come back up there and called me out of the hospital about eight o'clock that night. That was Sunday night, he called me out of the hospital and said he was in a little trouble and wanted to borrow some money; said they would not take a check; said he would pay me back the next morning. I said I did not have any money to loan, but knowing him, and as he was going to get me a car, I did let him have a hundred dollars. . . Don't know the date I got the telegram. . . The telegram said, `Will see you next week with new Ford car.'. . After we made the trade on Sunday, he was to deliver the car fifteen minutes before five o'clock the next Tuesday evening. I was just to wait that long. He said he was going to get the car at Gadsden, Ala. I was not buying it from the Ford Agency, unless he was the one." The defendant made the following statement to the jury: "I went on the road in 1942 for a branch company in Illinois as a driver for ten states. In 1946 the factory went on strike; they sent me home. I went to South Georgia. They were on strike for two or three months. I hauled produce from Atlanta. I was unloading a truck of fruit here when Mr. Whelchel asked if I knew where he could get a car. I told him I knew a man from Detroit, but that he would charge two hundred dollars over the price. He said, `That is all right if I can get one. Can make money.' I said I didn't know how long it would be but I would be glad to see him regarding it. On Saturday a man was in the barber shop and I talked to him. He said he could get one, but he did not know what kind. I went over to the hospital next evening and told Mr. Whelchel we could get one, but I did not know when, but it would be two hundred dollars over the market price. He had brought two here, one to Rome and one to Gadsden. I gave the money to Mr. Adkins, he went back to Detroit. Several days later the company sent me to Florida. He wrote me to my home address and my brother forwarded the letter; it said, `I think I can get a car in a few days.' I went to the Western Union and wired Mr. Whelchel. The man did not bring the car. I tried everywhere but could not get it. I came back here and went to selling Lincoln and Mercuries. He did not want one. The day this charge came in, I went to the solicitor's office. I said, `I will pay you back if we can settle it that way.' The very day this new charge came in, he said, `We can settle it.' He said, I will get the judge to put it off until the fifteenth of January. If you want to pay up, we will settle it! All right. I paid the fifty dollars. I was to pay the other by the fifteenth of January and court costs. Last week they called a special session of court and forfeited the bond. The twenty-fourth of December. Went off bond. Thought I would let you gentlemen decide what to do about it."