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Embezzlement; constitutional question. Before Judge Anderson. Bibb Superior Court. July 6, 1954.
1. The indictment, charging embezzlement under Code 26-2801, was not subject to the demurrer and motion to quash, which attacks the statute as denying equal protection as required by the State and Federal Constitutions and asserts that the indictment was deficient in describing the crime. Carter v. State, 143 Ga. 632 (85 S. E. 884).
2. The indictment contained seventeen counts charging separate crimes of embezzlement, and separate verdicts were rendered upon each count. The grant of a new trial by the court upon some of the counts did not require a new trial on the others. While such indictments may be justly condemned as preventing a fair trial, yet it is not as hurtful to the accused to allow the jury to hear evidence falling short of proving embezzlement as it is to hear evidence proving it. For what has heretofore been said concerning this subject, see Stewart v. State, 58 Ga. 577; Dohme v. State, 68 Ga. 339; Berrien v. State, 156 Ga. 380 (7) (119 S. E. 300); and Simmons v. State, 162 Ga. 316 (134 S. E. 54).
3. But it was error to allow the prejudicial and irrelevant evidence of the purported larceny or embezzlement of certain "I" beams, which were purported to be but not shown to be the property of the city and which were allegedly taken and used by the accused, as this evidence failed to show the commission of a crime in the taking and using of this property. Code 38-201, 38-202. It was not admissible under the similar-method rule, because (1) it failed to prove a crime committed by the accused; and (2) if it had done so, it was not so similar to the crime alleged in the indictment as to come within the exception to the general rule. Allen v. State, 201 Ga. 391 (40 S. E. 2d 144); Mims v. State, 207 Ga. 118 (60 S. E. 2d 373); Henderson v. State, 209 Ga. 72 (70 S. E. 2d 713); Bacon v. State, 209 Ga. 261 (71 S. E. 2d 615). Neither the ruling in Jackson v. State, 76 Ga. 551 (8), nor that in Bulloch v. State, 10 Ga. 47 (54 Am. D. 369), which is therein cited for support, requires a ruling different from the foregoing. In the former the defendant plainly put his character in evidence, as shown and stated in divisions 5 and 9 of the opinion, and proof by the State of any wrongdoings by him was clearly admissible to rebut his statement. The decision in the latter is wholly irrelevant and inapplicable, aud in no way supports the ruling in the former opinion wherein it is cited for support.
4. Since the ruling in headnote 3 will require a new trial on all the remaining counts of the indictment, and the evidence then to be submitted may not necessarily be the same as here, no ruling will be made on the general grounds of the motion for new trial or special grounds 2 and 3, as they are merely elaborations of the general grounds as to the sufficiency of the evidence.
S. Paul Howard (the plaintiff in error, defendant in the lower court) was indicted in Bibb Superior Court on seventeen counts for embezzlement. The indictment charges that as City Electrician of the City of Macon, a public officer in charge of a public department, station, and office of government of a municipal corporation, having in his possession, custody, and control certain named articles, the property of the city, he did unlawfully embezzle, steal, secrete, and fraudulently take and carry away the same, the language used being identical with that of Code 26-2801 describing a crime. His demurrer and motion to quash the indictment was overruled and the case proceeded to trial. After a conviction on certain of the counts, a motion for new trial was filed, amended, and, after a hearing, granted in part but denied in part. The exceptions here are to this judgment, and a pendente lite exception to the overruling of the demurrer to the indictment, which raised certain constitutional attacks thereto. For this reason, this court has jurisdiction of this writ of error, as the demurrer attacks the constitutionality of Code 26-2801 under which the embezzlement charge is brought.
DUCKWORTH, Chief Justice, concurring specially. There can be no bona fide contention that there is a sentence or word in Code 26-2801 that requires that the property therein described belong to the government. The exact language of the section is: "Any officer, servant, or other person employed in any public department, station, or office of government of this State or any county, town, or city thereof, who shall embezzle, steal, secrete, or fraudulently take and carry away any money, paper, book, or other property or effects, shall be punished by imprisonment and labor in the penitentiary for not less than two years nor more than seven years." In view of the numerous decisions of this court--a few of which are State v. Calvin, R. M. Charlton 151, p. 170, 1 Ga. Dec.; Studstill v. State, 7 Ga. 2 (1); Cook v. State, 11 Ga. 53 (56 Am. D. 410); Sweeney v. State, 16 Ga. 467; Ricks v. State, 16 Ga. 600; Hester v. State, 17 Ga. 130; Glover v. State, 126 Ga. 594 (55 S. E. 592); Snead v. State, 165 Ga. 44 (139 S. E. 812)--and the unambiguous provisions of Code 27-701, this court can not, while remaining within the constitutional limitations of its powers (Code, Ann., 2-3704), now rule contrary to the statutory law defining the requisite particularity of an indictment found in Code 27-701, as follows: "Every indictment or accusation of the grand jury shall be deemed sufficiently technical and correct, which states the offense in the terms and language of this Code, or so plainly that the nature of the offense charged may easily be understood by the jury." Nor can the duty of the Judiciary concerning unconstitutional laws, expressed in the Constitution (Code, Ann., 2-402) --which is: "Legislative acts in violation of this Constitution, or the Constitution of the United States, are void, and the Judiciary shall so declare them"--be denied or escaped. To point out that the law has stood for a long time or that countless persons have been convicted thereunder as excuses for failure to perform the judicial duty expressed in the Constitution, would constitute timidity and judicial cowardice unworthy of the Judicial Department. It can not be overlooked that the Constitution declares that all laws, not new laws, not old laws, not laws under which no persons have been convicted, but all laws that offend the Constitution are void and the Judiciary shall so declare them. In Beall v. Beall, 8 Ga. 210, this court said: "To disregard the laws of the State, is a capital crime against society, and great vigilance is necessary to see to it, that they are equally respected, by those who govern, as well as those who are destined to obey." As pointed out at the beginning, to commit the crime defined in Code 26-2801, it is necessary only that one be an officer or agent of the government and embezzle, etc., the property therein described, irrespective of who may be the owner of such property. Anyone can clearly see that to thus subject those working for a government to prosecution, while excluding all other persons not so working, is the rankest sort of discrimination. This the Constitution forbids in the following language: "Protection to person and property is the paramount duty of government, and shall be impartial and complete." Code (Ann.) 2-102. Unless plain English can be deprived of meaning, the procedure provided in Code 26-2801 is neither impartial nor complete protection. Then the Constitution renders judgment thereon, declaring it void and directing this court to so declare. Code (Ann.) 2-402.
It is neither sound argument nor valid judicial reason, after saying, as was done in Robinson v. State, 109 Ga. 564 (35 S. E. 57, 77 Am. St. R. 392), "It seems that it is necessary that the appropriation shall be made of property belonging to another, or, in case of a public officer, to the public, which rightfully came into the possession of the person charged with its appropriation," then, in Carter v. State, 143 Ga. 632 (85 S. E. 884), to assert that this court adheres to that view, and at the same time hold that it is not essential to its constitutionality that the statute require that property of the employer be embezzled. It is provided in Code 27-701 and countless decisions of this court that the indictment need only describe the crime in the language of the statute. Surely no court will so disregard the established law as to hold that it is ever necessary to prove more than the allegations of an indictment. Therefore, the only possible legal way it could be necessary, as held in Robinson v. State, 109 Ga. 564, supra, to show that the property belonged to the public is for the law to say so. Since Code 26-2801 does not so provide, it subjects government employees to prosecution for embezzling any property of anyone whomsoever while exempting all others though they do the same thing. It is therefore the rankest kind of discrimination against government officials and agents and in favor of all other persons and is a denial of equal protection, as required by Code (Ann.) 2-102, and is void.
While it may be competent for the legislature to enact a valid law making criminal the acts enumerated in this statute, such a law must apply to all persons alike in order to satisfy the equal-protection requirements of the State and Federal Constitutions. See Baugh v. City of LaGrange, 161 Ga. 80 (2a) (130 S. E. 69). This equal protection might be obtained, although the law does not apply to all persons, provided that a valid classification is made and the law is made applicable alike to all members of that class. Arthur v. State, 146 Ga. 827 (92 S. E. 637); Geele v. State, 202 Ga. 381 (43 S. E. 2d 254, 172 A. L. R. 196). Such a classification, however, must have a basis that bears a direct relationship to the object and purpose of the legislation. Woolworth Co. v. Harrison, 172 Ga. 179 (156 S. E. 904); Gibbs v. Milk Control Board of Georgia, 185 Ga. 844 (2) (196 S. E. 791); Geele v. State, 202 Ga. 381, supra; Moultrie Milk Shed v. City of Cairo, 206 Ga. 348 (2) (57 S. E. 2d 199). To illustrate, since the section here under consideration subjects to prosecution thereunder only persons having a connection with government if the appropriated property under the statute is specifically required to be the property of the government employing that person, then the classification would be a valid one. The attack here is directed to the features of the statute which point out only those employed by government for prosecution thereunder, but place no restriction upon the ownership of the property appropriated.
Wm. M. West, Solicitor-General, Charles F. Adams, Assistant Solicitor-General, contra.
Miller, Miller & Miller, Wallace Miller, Jr., for plaintiff in error.
Saturday May 23 03:39 EDT

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