O'Connell vs. The State of Georgia. RUFUS E. LESTER; M. J. O'DONOGHUE, for plaintiff in error. W. G. CHARLTON, solicitor general pro tem., for the state. BLECKLEY, Judge. 1. The important question made by the motion for new trial, is whether there was evidence enough to convict. The railroad iron, spikes, chairs, brasses, etc., were alleged in the indictment to be the property of the Central railroad and Banking Company, and to have been stolen by a person unknown, and afterwards received by the prisoner, he knowing them to be stolen. All these points were material: 2 Bishop's Cr. Law, section 953; 2 Bishop's Cr. Procedure, section 707; 4 Georgia Reports, 465; Roscoe's Cr. Ev., sections 875-6. As the evidence comes to us in the record, it seems to us too vague and uncertain to establish ownership of the property in the Central Railroad and Banking Company, or that it was ever stolen from that company. Some of it was marked "C. R. R."; but how marked and by whom? It is not explained whether the marks were indented in the iron or raised upon the surface, or put on in ink, paint or penciling. What is meant by marking with the Central Railroad pattern? We cannot perceive that any of this property was clearly shown to have ever been in the possession of the company. If it was, where was it, and what agent had the custody of it? One witness swears the company lost iron in the year 1872, but how was it lost, and where from, and what kind, and how much? Why did not the railroad employees who testified in the case speak more definitely? We think there is more in this case than has been developed, and that there is no reason why the witnesses should not be more carefully sifted. It is altogether probable that they know enough to identify the property, prove ownership, and make out a larceny, but the difficulty is they did not go into the case thoroughly, or else their evidence, as delivered on the stand, has not been properly briefed and brought up. We must act VOL. LV. 20. Fox vs. Davis & Company. upon it as we find it, and so doing, we pronounce it fatally deficient. 2. According to evidence adduced in behalf of the prisoner, some of the iron was purchased by his agent, and received in his absence. It was proposed to prove what the person who sold it to the agent said as to title in making sale to the agent. That was competent evidence. It was a part of the res gesta. There was no proof that the particular iron involved in that transaction was received by the prisoner otherwise than through this agent. If he ratified the agent's act what did he ratify? To ascertain that, all evidence is relevant that goes to characterize the act. What was said at the time may be true or false, but still, the fact that it was said was a part of what transpired, and tends to illustrate the transaction. The evidence may be worth very little when it is in, but nevertheless, being relevant, it is admissible. We grant the new trial on the former ground. Let the case be tried over on fuller testimony, if it is to be had. Judgment reversed. 55 298 86 246 55 298 70 569 81 475 55 298 102 271 WILLIAM K. Fox, plaintiff in error, vs. J. W. DAVIS & 1. Where there is no evidence in the record that the bailee received the goods entrusted to him in the county of Fulton, and state of Georgia, but where the goods were sent by the bailor, from Louisville, Kentucky, to the purchaser from the bailee at Talladega, Alabama, direct, a prosecution of the bailee for larceny after a trust of these goods, will not lie in Fulton county, Georgia, although the goods were sent direct to Talladega, by the direction of the bailee, and although he lived and did business in Fulton county, Georgia, and had agreed to consider the goods consigned to him and to be responsible therefor as consignee. 2. If there be proof that the proceeds of the goods sold to the bailee in Georgia, but sent by his order to the purchaser in Alabama direct, came into the possession of such bailee in Fulton county, Georgia, and on demand upon him here, these proceeds were not delivered to the consignors nor their value paid to them, but were converted by the bailee to his own use, these facts, if not sufficient to sustain a prosecution of the bailee for Fox vs. Davis & Company. larceny after a trust in Fulton county, Georgia, go far to show probable cause for the prosecution, and in any event, will largely mitigate the damages. 3. The advice of counsel, while of itself, under our Code, it is no protection to the defendant in a suit for a malicious prosecution, may yet go to the jury as a circumstance tending to show want of malice, and the existence of probable cause, and in mitigation of damages; but a charge to the effect that if a client represented the true state of the case to his attorney, and received his advice and acted on it, this would furnish evidence of probable cause, but if he represented the case untruly, then such advice would not be any protection, is too broad, and might lead the jury to believe that if the representation of the client were true, the advice of counsel would be a protection to him, whereas, our Code expressly declares that in such case the client shall not be relieved from liability for damages. Criminal law. Larceny after trust. Attorney and client. Torts. Malicious prosecution. Damages. Before Judge HOPKINS. Fulton Superior Court. October Term, 1874. Reported in the opinion. R. ARNOLD; E. N. BROYLES, for plaintiff in error. D. F. & W. R. HAMMOND, for defendants. JACKSON, Judge. J. W. Davis & Company, of Louisville, Kentucky, sold to Fox, a merchant in Atlanta, a lot of furniture, which Fox directed to be shipped to Ross, at Talladega, Alabama. A portion of the goods appears from the evidence to have been so shipped under this ordinary purchase; but before all were shipped, the sellers, at Louisville, became uneasy, and refused to ship more unless Fox would agree to consider them sent to him under consignment, and be responsible for them as bailee. This was agreed to, and there is some conflict in the evidence whether the agreement embraced all the furniture sold or only the part shipped to Ross after the new agreement. We presume from their verdict that the jury thought the agreement embraced all the furniture, and we are not disposed to interfere with their finding in this particular. The agent of Davis & Company demanded these goods or their Fox vs. Davis & Company. proceeds, or payment for them from Fox. Fox offered to pay for the part sent after the agreement, considered this part on consignment, but this part only, and having failed in business, had only reserved money enough to pay for them, and could not pay more without injustice, he said, to other creditors. The agent of Davis & Company, Duvall, declined to receive this part payment, but insisted on all, according to the testimony of Fox and his clerk, but according to his own version no payment was tendered to him. It appears that the goods sold by Fox to Ross, and shipped by Davis & Company, were mortgaged by Ross to Fox, and that afterwards, in Fulton county, Georgia, this mortgage was transferred by Fox to other creditors to secure them, Davis & Company being left out, both as to the goods sent before and after the agreement to receive them on consignment. Thereupon, Davis & Company, by their agent, Duvall, prosecuted Fox for larceny after a trust, under section 4422 of the Code. Fox was in prison or custody some twenty-four hours, and was bound over to appear at court. At court the prosecution was abandoned, and he was discharged by order of court, and thereupon sued the defendants, Davis & Company, for a malicious prosecution; the jury found for the defendant; a motion was made for a new trial, and refused, and the refusal to grant it is the error assigned. Pending the time of the commitment of Fox and the session of the superior court, Fox and the creditors to whom he had transferred the mortgage, arranged with Davis & Company to let them into the mortgage on equal terms, other goods besides those shipped to Ross by Davis & Company being embraced in the mortgage; but it was expressly stipulated that this agreement should not affect the prosecution of Fox nor this suit for malicious prosecution. 1. This furniture was never sent to Fox, in Atlanta, on consignment. He never, therefore, received them here as bailee for Davis & Company. That relation did not exist between them within the county of Fulton as to this furniture. It is clear, therefore, that no prosecution could be Fox vs. Davis & Company. maintained against Fox, here, for larceny of these goods-of this furniture—after a trust; for the simple reason that there was no trust of the goods. Fox was never entrusted with them in the county of Fulton, and no agreement that he made with Davis & Company to consider the goods shipped from Louisville to Talladega as under consignment, could give the superior court here jurisdiction of the offense. 2. It seems, however, that he got in some sort, the proceeds of the goods into the county of Fulton. Ross mortgaged these, with other goods, to Fox, and sent the mortgage to him in Atlanta, and here, in Atlanta, he, Fox, transferred the mortgage to other creditors, thereby converting, in the county of Fulton, these proceeds to his own use. The question arises whether, under the last clause of section 4422 of the Code, a prosecution could be maintained against him in the county of Fulton, in view of this state of facts. The language of the clause is, "or if after a sale of any of the said articles, with the consent of the owner or bailor, such person shall fraudulently and without the consent of the said owner or bailor, convert the proceeds thereof, or any part of the proceeds to his or her own use, and fail or refuse to pay over the same on demand to such owner or bailor, such person," Undoubtedly Fox did convert a part of these goods, in this county, to his own use, and we think, under the evidence probably the whole of them, the jury finding that all were received, at all events, settles that question here; but does not the clause contemplate that he must have been entrusted here with the articles out of which these proceeds came? We think so; because, the language is, "or if, after a sale of any of the said articles." What articles? Unquestionably, those previously entrusted to him as bailee here; but none were so entrusted to him as bailee here, in the county of Fulton; therefore he never received nor converted the proceeds of such articles, nor did he ever sell such. We think, therefore, that the court erred in his charge in the seventh ground of the motion, which is in these words: "If Fox received goods in whole or in part for sale on commission, and sold and re etc. |