Rollins v. State
Rollins v. State
Opinion of the Court
J. W. Brinson, Jr., and Raleigh Rollins were jointly indicted in Fulton Cpunty for the offense of a conspiracy to defraud the State of a stated amount of its money, a felony. In substance the indictment alleges that, on July 10, 1957, and in Fulton County, the defendant Brinson, as 'Director of Georgia’s Department of State Parks, did feloniously conspire and agree with the defendant Rollins to defraud, cheat, and illegally obtain from the State $3,000— property of the State of Georgia, and that the plan or scheme formulated by them for the purpose of illegally obtaining that amount of the State’s money was in substance as follows: The defendant Rollins from time to time, after obtaining purchase orders in the name of Hart-Rollins Furniture Company from the State’s supervisor of purchases for specified park furniture, playground equipment, and household furnishings and furniture, would not deliver all of the articles specified in such purchase orders, but only portions thereof; that the defendant Rollins would present invoices to the defendant Brinson, as such director, for payment out of State funds of all articles specified in the purchase orders; that the defendant Brinson was to receive the invoices so presented, mark them for payment, and by checks drawn on State funds, and signed by himself as such director, pay such invoices in full to Hart-Rollins Furniture Company, with knowledge on the part of both defendants that only a portion of the articles specified in such purchase orders had been delivered to the Department of State Parks, and that the remaining portion of such articles would not be delivered to it; all of said acts of accused being contrary to the laws of said State, the good order, peace and dignity thereof. When arraigned for trial and before pleading to the merits
1. Section 26-4201 of Georgia’s official Code of 1933, which is a codification of section 1 of the 1872 act, provides: “Any two or more persons who shall conspire or agree to defraud, cheat, or illegally obtain from the State or any county thereof, or from any public officer of this State, or any county thereof, or any person exercising the duties of any such office,
2. There is also no merit in the constitutional attack on Code § 26-4204, which declares that the offense described by Code § 26-4201 is complete when the conspiracy is effected, and shall be punished whether the same is carried into effect or not. The criminal offense of conspiracy is complete at common law as soon as the confederacy or combination is formed. O’Connell v. United States, 253 U. S. 142 (40 S. Ct. 444, 64 L. Ed. 827); Hagan v. O’Neil, 255 U. S. 52 (41 S. Ct. 222, 65 L. Ed. 497); 11 Am. Jur. 546, § 6. The conspiracies which are made substantive penal offenses by the Sherman Act (26 Stat. 209, 15 U.S.C. § 1) are complete and effective when the combination is entered into and are punishable as such even though not followed up by an overt act. See Nash v. United States, 229 U. S. 373 (33 S. Ct. 780, 57 L. Ed. 1232), where the court’s opinion was prepared and delivered by Justice Holmes and it was held: “The Sherman Act punishes the conspiracies at which it is aimed on the common law footing and does not make the doing of any act other than the act of conspiring a condition of liability. In this respect it differs from § 5440 [of the revised statutes] and the indictment need not aver overt acts in furtherance of the conspiracy.” And it is generally held by the courts of this country that no overt act is necessary to complete the offense of conspiracy unless it is required by special statutory enactment. See 11 Am. Jur. 546, § 6, and the many cases cited in the author’s annotation as authority for his statement of the rule that the crime of conspiracy is complete and fully effected when the corrupt agreement is made by two or more persons to commit an act which the law prohibits, where there is no statute requiring an overt act for the accomplishment of the unlawful purpose of the agreement. The appellate courts of nineteen different states, which include the courts of last resort in the States of New York, Massachusetts, Michigan, Indiana, Ohio, and New Jersey, have held that, in the absence of a statutory requirement making an overt act an essential
3. Section 27-701 of our Code of 1933 declares: “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. . .” Tested by this rule, the allegations of the indictment against the accused are sufficient to charge a violation of Code § 26-4201. They charge the defendant and his co-indictee with having feloniously conspired and agreed
4. Obviously, there is no merit in the contention that the indictment is duplicitous and for that reason should be quashed. It alleges a conspiracy — a violation of Code § 26-4201, which this defendant and his co-indictee allegedly formed on a specified date in Fulton County, and the acts each agreed to do in furtherance of the conspiracy.
5. The judgment complained of is not erroneous for any reason assigned.
Judgment affirmed.
Dissenting Opinion
dissenting. The grounds upon which my dissent is based are, briefly stated, as follows: No one has, and indeed no one can, correctly deny that our law demands that all criminal laws be strictly construed, and this means that nothing can be added to or subtracted therefrom by implication. The law under which this indictment is drawn expressly states that the agreement or conspiracy must be to take “property belonging to the State.” The above rule of construction will not allow an addition to this language as is done in the indictment, to take property that will in the future belong to the State, if and when certain events occur. The exact words of the indictment refer to a conspiracy to take the property “from time to time after obtaining purchase orders.” In substance, the indictment charges that this defendant conspired and agreed with Brinson that in the future, if and when property
Head, Justice, dissenting. Stripped to its essentials, the provisions of Code § 26-4201 are as follows: “Any two or more persons who shall . . . agree to . . . illegally obtain from the State . . . any property belonging to the State . . . shall be punished. . .” Those of Code § 26-4202 are: “Any person holding any public office who shall . . . agree with any person . . . to . . . illegally obtain from the State . . . any property . . . shall be punished. . .” The indictment here alleges that the defendants illegally agreed to obtain from the State $3,000. What three thousand dollars? Obviously not any particular three thousand dollars, in bills, in coin, in checks, in warrants, but simply the amount of money or credit with which the State intended to purchase certain definite property, listed on invoices in its possession, and of which it was, or was intended to be, defrauded, by nondelivery of the property
Assuming that one of the alleged coconspirators testifies upon the trial of this case that he and the other defendant did agree to> the conspiracy charged, a valid verdict of guilty can not be reached until the State, by proving acts pursuant to the alleged conspiracy, convinces the jury that the conspiracy in fact existed. Code § 38-121. It follows that, both as related to pleading and as related to evidence, the State must necessarily identify the property which was the subject matter of the conspiracy, for, unless the conspiracy has some subject matter to act on, it can not exist. While Code § 27-701 requires only that an indictment state the offense in the terms and language of the Code, no indictment relating to property has ever been held to be sufficient under the Code which did not describe the property sufficiently to insure its identification. An indictment for larceny which does not describe the property stolen sufficiently to identify it is subject to special demurrer. Walthour v. State, 114 Ga. 75 (39 S. E. 872); Melvin v. State, 120 Ga. 490 (48 S. E. 198). In larceny after trust cases, the particular trust must be alleged ■and proved. McNish v. State, 88 Ga. 499 (14 S. E. 865). Where
The State should not be allowed to proceed by refusing to identify any acts at all. It does not identify property to say “this is a part of a total amount of property” as to items which are not interchangeable. The State can not indict for larceny from the house by alleging that the defendant did take and carry away “a part of all of the furniture in the house consisting of chairs, tables, and beds,” without stating what property is the subject matter of the crime. The same rule should apply in the present case.
It does not appear how much business or how many transactions were had between the Director of State Parks and the Hart-Rollins Furniture Company. There may have been hundreds of transactions. The very general indictment setting forth scarcely more information than that contained in the Code section (which, being a form, is obviously insufficient to identify anything) thus permits the State to sandbag the defendant Rollins with evidence he can not possibly be prepared to refute. The indictment in this form withholds from the defendant the facts that are necessary in order that he may prepare a defense. What harm can be done to the State by charging specifically what transactions occurred between the parties that resulted in the fraud and the loss of $3,000? If the charges are true., it need have no apprehension about establishing them, for the State surely knows what items it paid for that it did not receive. If the charges are not true, the defendant ought not to be called upon to refute false accusations. The only way he can get a fair trial is to know in advance what he is charged with. The majority opinion in this case precludes the right of the defendant to information essential to -his defense.
Reference
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- ROLLINS v. THE STATE Et Al.
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