1. Whenever the question of the constitutionality of a statute is properly presented in a case, this court has jurisdiction of the case even though the court determines that a decision upon such constitutional question is unnecessary to a solution of the case and makes no decision thereon.
2. An indictment charging a conspiracy to cheat or defraud the State of property, under Code 26-4201 must contain definite allegations as to the manner in which the conspirators designed to cheat or defraud the State, and must set forth with particularity the property of the State at which the conspiracy was aimed.
3. The averment that named sums of money were obtained by the defendants in a transaction which occurred before the conspiracy was alleged to have come into existence does not serve to make the indictment more certain, because, first, the allegation of acts in furtherance of the conspiracy prior to its formation is to assert an impossibility; and, secondly, that portion of the indictment containing the averment of the overt act did not contain a statement of the design of the conspiracy or indicate that it was the plan of the conspirators to obtain the particular funds referred to in setting forth the overt act.
The grand jury of Fulton County returned an indictment against Frances B. Wright charging her with the offense of conspiracy with others to defraud the State of money. The indictment alleged: "that said accused, in the County of Fulton and State of Georgia, on the 20 day of January, 1958, with force and arms, accused being employees of the State of Georgia, did, with an unlawful and fraudulent intent to cheat and defraud the State of Georgia, conspire and agree with each other and with other parties to the grand-jurors unknown to defraud, cheat and illegally obtain from the State of Georgia money belonging to the State of Georgia, by means of a scheme and artful practice which the accused engaged in, as follows: When a need of articles or material for the use of the Department of State Parks was indicated, accused would cause a requisition to be prepared for such articles or material and transmitted to the Purchasing Department of the State of Georgia together with one or more documents purporting to be 'bids' in which certain firms or persons named in said documents purported to offer to sell the said desired articles or materials to the State of Georgia at specified prices, said purported 'bids' not being genuine bids and being at prices higher than the articles and materials could be purchased in the open market or through competitive bids and known to accused to be such, and purchase orders would then be issued by the Office of the State Supervisor of Purchases for the said articles or materials, based on the lowest of the said purported 'bids,' authorizing the purchase of the designated articles or materials at the price shown thereon, and accused would then order said articles or material at prices less than the prices authorized by said purchase orders and have the said articles and materials delivered to the State of Georgia and procure money belonging to the State of Georgia from the funds allocated to the said Department of State Parks in payment for said articles and materials at the price authorized by the said 'purchase orders', thereby procuring for accused's benefit the difference between the actual purchase price and the price authorized by said purchase orders."
The indictment further alleged that through various transactions transpiring one to two years before the date the conspiracy was entered into the defendant pursuant to the conspiracy obtained named sums of money from the State.
The defendant filed a general demurrer to the indictment on the grounds that Code 26-4201, under which the indictment was drawn, was unconstitutional, and because the indictment charged no violation of any penal statute of Georgia.
1. The initial question for consideration is the jurisdiction of this court to entertain the appeal. This court in Rollins v. State, 215 Ga. 437
(111 S. E. 2d 63) as against substantially the same grounds of attack as are presented in this case held Code 26-4201 constitutional. In Gormley v. Walton, 47 Ga. App. 466 (1)
(170 S. E. 706) it was held that, where the Supreme Court had previously passed upon the constitutionality of a statute made upon substantially the same grounds as are presented by a bill of exceptions, no constitutional question is raised that will give the Supreme Court jurisdiction. In the same case this court, in reversing the Court of Appeals, held: "Since it appears from the record in this case that the constitutionality of a statute was drawn in question, and that the Supreme Court and not the Court of Appeals has jurisdiction, and since the Court of Appeals erred in retaining jurisdiction of the case, no adjudication will be made as to other questions raised in the petition for certiorari; but the case will be decided upon the original bill of exceptions and record after the Court of Appeals shall have transferred the case to this court as provided by the Constitution." Walton v. Gormley, 180 Ga. 90
(178 S. E. 152).
In Morgan County v. Craig, 213 Ga. 742
(101 S. E. 2d 714) it is held: "That the 1920 act, supra, was unconstitutional, as applied to counties, was held and settled by the decision of this court in Floyd County v. Scoggins, 164 Ga. 485
(139 S. E. 11, 53 A. L. R. 1286). This ruling was applied and followed in Murphy v. Constitution Indemnity Co., 172 Ga. 378
(157 S. E. 471). The 1943 amendment, supra, was also held unconstitutional by this court in Kelley v. County of Newton, 198 Ga. 483
(32 S. E. 2d 99). Therefore, the abortive attempt in the motion to again present for decision these questions that had been finally and conclusively put at rest by the decisions of this court, raised no question that the Court of Appeals can not promptly dispose of by applying those decisions of this court, and, hence, no constitutional question is involved."
It is apparent that Walton v. Gormley, 180 Ga. 90
, supra, and Morgan County v. Craig, 213 Ga. 742
, supra, are in conflict. We think that the correct rule is stated in the latter case and hence expressly overrule the case of Walton v. Gormley, 180 Ga. 90
, supra. Thus, since the attacks made upon the constitutionality of Code 26-4201 in the instant case and in Rollins v. State, 215 Ga. 437
, supra, are substantially the same, this court ordinarily would not rule upon that question.
However, in the instant case there is a proper motion that this court reverse and overrule the case of Rollins v. State, 215 Ga. 437
, supra, and the question as to the constitutionality of Code 26-4201, though passed upon previously in the Rollins case, is by virtue of that motion again for this court's consideration. Moreover, this court had jurisdiction of the question as to whether Code 26-4201 was constitutional when the case reached this court and will continue to have jurisdiction until the judgment disposing of the case is rendered. This is true because not until the judgment is entered is the case of Walton v. Gormley, 190 Ga. 90
, supra, overruled.
The rule is stated in Franklin v. Mobley, 202 Ga. 212 (1): (42 S. E. 2d 755): "In view of the questions made in the record as to a proper construction of certain provisions of the Constitution of 1945, this court and not the Court of Appeals has jurisdiction of the instant case; and this is true, although upon a consideration of the entire case, this court determines that a decision upon such constitutional questions is not necessary to a proper solution of the case, and makes no decision thereon." Thus, it appears that this court has jurisdiction of the case.
2. This court adheres to its ruling on the constitutionality of Code 26-4201 as contained in Rollins v. State, 215 Ga. 437
, supra. The first ground of the general demurrer, which attacks the constitutionality of that section, is without merit. This leaves for consideration the second ground, which is that the indictment charged no offense against any penal law of Georgia: "The indictment must charge the crime and every substantial element of the offense alleged to have been committed." Durden v. State, 152 Ga. 441
, 443 (110 S. E. 283).
The charge of a conspiracy is essentially the same thing as pleading a contract, for a conspiracy is a corrupt agreement between two or more persons to do a particular thing, 11 Am. Jur. 544, Conspiracy, 4. An indictment charging the type of conspiracy made criminal by Code 26-4201, that is, a conspiracy as applied to the facts of this case, to cheat or defraud the State of property, must contain definite allegations as to who were the parties to such conspiracy, how and in what manner they designed to cheat or defraud the State, and of exactly what property they conspired to unlawfully defraud the State. "Since, however, the conspiracy itself constitutes the crime and since the statute as originally enacted has been modified by the adopted Codes in which it has been codified so as to provide that the object of the conspiracy may be to defraud the State of 'property' in its broader sense, it seems clear that an indictment charging a conspiracy under the statute must with particularity set forth the exact property of the State at which the conspiracy is aimed. Were an overt act necessary to complete the offense, a different rule might obtain. Here the statute makes entering upon the agreement a felony. That being so, the indictment charging the crime must with particularity set forth the nature of the agreement and the exact end to be accomplished thereby. Manifestly it would not be sufficient to say in an indictment that the defendants conspired to defraud the State. The gravamen of the offense is the conspiracy to defraud the State of property. That is what makes it necessary to set forth with particularity the property of the State at which the conspiracy is aimed." Cadle v. State, 101 Ga. App. 175
, 187 (113 S. E. 2d 180). This pronouncement is an expression of a well recognized legal principle. A similar case is U. S. v. Greene (D. C. Ga.), 115 F. 343.
The indictment in the instant case does not charge that the defendant conspired with others to cheat or defraud the State of any designated funds or any particular amount of money. Hence, it is fatally defective in failing to allege against what money of the State the conspiracy was aimed.
3. The averment that named sums of money were obtained by the defendants in transactions which occurred before the conspiracy came into existence does not serve to render the charge of the indictment more certain, because, first, the allegation that acts transpiring before the conspiracy came into being is to assert an impossibility. The design of the conspiracy alleged was solely to obtain money in future transactions, and did not include any plan or purpose to retain money which had already been obtained by any of the conspirators. Secondly, the averment of the overt act did not undertake or purport to allege or describe the original design of the conspiracy or even indicate that it was the plan or scheme of the conspirators to obtain the particular funds referred to in setting forth the overt act. "An imperfect averment of the facts constituting the description of the offense is not aided by introductory matter of the indictment, the qualifying epithets attached to the facts, or the alleged injurious consequences of such facts." 11 Am. Jur, 563, "Conspiracy," 29. In short, the indictment construed as a whole did not show the property of the State against which the conspiracy was aimed.
CANDLER, Justice, concurring in part and dissenting in part. I concur in the portion of the opinion relating to the constitutional question and including the overruling of the decision in Walton v. Gormley, 180 Ga. 90 (178 S. E. 152), and in the judgment to this extent; but I dissent from the portion of the opinion holding the allegations of the indictment insufficient and from the portion of the judgment to this effect,
HAWKINS, ALMAND, and MOBLEY, Justices, concurring specially. We concur in the judgment holding the indictment subject to the demurrer because the indictment alleges the formation of the conspiracy some two years after the taking of the funds which are alleged to have been the subject of the conspiracy, but not in all that is said in the opinion.