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Rambo v. State

Court of Appeals of Georgia, Division No. 1

June 15, 1920

RAMBO
v.
STATE.

         Syllabus by the Court.

         A motion in arrest of judgment will lie where the exceptions are to a defect appearing on the face of the indictment ( Williams v. State, 4 Ga.App. 853, 62 S.E. 525[1]), and are to the substance of the indictment, and the defect affects the real merits of the offense charged (Pen. Code 1910, § 980), and is such as to render the indictment void ( Gazaway v. State, 9 Ga.App. 194, 70 S.E. 978).

          Additional Syllabus by Editorial Staff.

         An indictment for larceny after trust of money intrusted to defendant, a salesman, for delivery to his employer, not alleging that he did "fraudulently convert," as required by Pen. Code 1910, § 192, was a defect appearing on the face of the indictment going to the "substance" and affecting "the real merits of the offense charged," within section 980, and made the indictment fatally defective, so that the overruling of the motion in arrest of judgment after a conviction was error.

         Error from Superior Court, Fulton County; John D. Humphries, Judge.

         H. M. Rambo was convicted of larceny after trust, his motion in arrest of judgment was overruled, and he brings error. Reversed.

Page 495.

         Etheridge, Sams & Etheridge and Frank A. Hooper & Son, all of Atlanta, for plaintiff in error.

         John A. Boykin, Sol. Gen., and E. A. Stephens, both of Atlanta, for the State.

         BLOODWORTH, J.

         The defendant, H. M. Rambo, was charged in the indictment:

"With the offense of larceny after trust, for that said accused in the county of Fulton and state of Georgia, on the 1st day of August, 1919, with force and arms, being then and there employed as a salesman and collector for the Honduras Coffee Company, a corporation, and as such employé having been intrusted by said Honduras Coffee Company with $400 in money, of the value of $400 and the property of the aforesaid corporation, for the purpose of accounting to and delivering to said Honduras Coffee Company said sum of money, did, after having been so intrusted, convert said sum of money to his, the aforesaid H. M. Rambo's, own use, contrary to the laws of said state, the good order, peace, and dignity thereof."

         The defendant was tried and convicted, and made a motion in arrest of judgment upon the ground that the indictment was fatally defective because it "fails to allege any fraudulent conversion." This motion in arrest of judgment was overruled by the trial judge, and the case was brought to this court for review.

         A motion in arrest of judgment will lie where the exceptions are to a defect appearing on the face of the indictment ( Williams v. State, 4 Ga.App. 853, 62 S.E. 525 [1]), and are to the substance of the indictment, and the defect affects the real merits of the offense charged (Penal Code, § 980), and is such as to render the indictment void ( Gazaway v. State, 9 Ga.App. 194, 70 S.E. 978). In this case the defect which appears on the face of the indictment is to the "substance," and affects "the real merits of the offense charged," for it does not allege that the accused did "fraudulently convert," as required by section 192 of the Penal Code. The words "fraudulently convert" "are inherent in the body of the definition of the offense, and cannot be separated from it. * * * Every allegation in this indictment may be true, and yet the plaintiff in error be guiltless of any violation of the law; for the facts stated do not necessarily constitute an offense by the law." Herring v. State, 114 Ga. 102, 39 S.E. 869. Justice Lewis, in Keys v. State, 112 Ga. 396, 37 S.E. 764, 81 Am.St.Rep. 63, said:

"Indeed, so far as our research has extended, the weight of authority is based upon the idea that the gravamen of the offense of larceny after trust is the fraudulent conversion of the property of another, and ...

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