Opinion
33545.
DECIDED JUNE 5, 1951.
Intent to defraud; from Fulton Superior Court — Judge Moore. February 24, 1951.
W. F. Moore, for plaintiff in error.
Paul Webb, Solicitor-General, Guerry R. Thornton, Charlie O. Murphy, contra.
1. Where a contractor is being prosecuted under Code (Ann. Supp.) § 26-2812 for failure to pay for material furnished on account of improving certain real property, prima facie evidence of intent to defraud arises upon proof that the owner of the real property paid the contractor the sum specified under the terms of the contract for the improvement of the property, and that the contractor failed to pay for certain material ordered and used by him in making the improvements.
2. Special grounds of an amended motion for a new trial not complete within themselves cannot be considered by this court.
DECIDED JUNE 5, 1951.
J.N. Allison was indicted, tried, and convicted in the Superior Court of Fulton County for a violation of Code (Ann. Supp.) § 26-2812 which provides as follows: "Any architect, landscape architect, engineer, contractor, subcontractor, or other person who, with intent to defraud, shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on, or materials furnished by his order for this specific improvement, while any amount for which he may be or become liable for such labor, services or materials remains unpaid shall be guilty of a felony and upon conviction shall be punished by imprisonment for not less than one year nor more than five years, or upon the recommendation of the jury, or in discretion of the trial judge, punished for a misdemeanor. A failure to pay for the material or labor so furnished shall be prima facie evidence of intent to defraud."
The evidence, in its light most favorable to support the verdict, was substantially as follows: that the defendant had entered into a contract with W. E. Earnest in August, 1949, to remodel his house; that the original contract was in the amount of $800, but certain extras were later agreed upon making a total indebtedness of $1048; that this money was paid to the defendant and receipted for by him; that the defendant worked on the house for a period of seven weeks, using workmen for short periods of time as they were not needed on another contract in which he was engaged; that some time after the work was completed the owner discovered that a bill in the amount of $869.93 was outstanding to the Aldredge General Supply Company for materials delivered and used on the Earnest property, purchased by the defendant; that when this company attempted to collect the bill the defendant informed them he had not been paid; that J.H. Aldredge then called the owner and ascertained that the defendant had been paid, whereupon he again called the defendant and was told that Mr. Earnest had paid the money but that he, the defendant, had spent it. The work was examined by another contractor who testified that in his opinion the cost of labor and materials should have been around $800, and that it should have been finished in two weeks. The defendant in his statement admitted receiving the sum of $1048 for the contract and stated that he had paid out for labor the sum of $1155.50, none of which money was retained for himself, and that he actually lost $107.50 in addition to the money owing to the Aldredge Supply Company. He acknowledged the debt but contended that he was unable to pay it at that time.
After conviction the defendant filed a motion for a new trial on the general grounds, which was later amended by the addition of three special grounds. This motion was overruled, and the defendant brings error.
1. In construing the act upon which this indictment is based, the Supreme Court held, in Johnson v. State, 203 Ga. 147, 151 ( 45 S.E.2d 616) as follows: "The object of the act was to make penal the conversion of funds delivered for the purpose of applying to labor and material cost, with a provision that there would be a conversion when such funds were otherwise used while there remained any unpaid labor or material cost. . . The intent to defraud is an essential element of the crime, and the provision making the failure to pay for labor or material prima facie evidence of intent to defraud is a rational connection between a proven fact and what is to be inferred therefrom and rests upon a definite basis. It is not an arbitrary presumption or legislative fiat. Neither is it a conclusive presumption, but a rebuttable one, as the way is left open to repel it by evidence either produced by the State or the accused."
In order for the prima facie evidence of intent to defraud to apply, the evidence must show that the contractor received the money to be used in the improvement of the real property in question, and that he failed to pay for material or labor furnished for such improvement. The evidence is undisputed that the prosecutor paid to the defendant here the money specified under the terms of the contract which was to be applied toward the improvement of the home of the prosecutor. The evidence is also undisputed that the defendant failed to pay for certain material used in the improvement of the home under the terms of the contract. The presumption of intent to defraud therefore arises and the burden is on the defendant to account for the funds by showing that the entire sum was used for the payment of labor and material. Under the evidence here the jury was authorized to find that the defendant failed to rebut the presumption of fraud.
2. As pointed out by counsel for the State, the special grounds are incomplete within themselves, in that they require reference to the record, fail to set up the substance of the testimony and documentary evidence objected to or the fact of timely objection and grounds of objection urged. In consequence, they will not be passed upon by this court. See Gibson v. State, 77 Ga. App. 292 ( 48 S.E.2d 309); Code, § 70-301.
The trial court did not err in overruling the motion for a new trial.
Judgment affirmed. MacIntyre, P.J., and Gardner, J., concur.