dissenting. I can not agree to the judgment of af-' firmance in this case. It is admitted in the majority opinion that the defendant is not charged with the same offense in different ways under one section of the Penal Code, but is charged with kindred crimes under different sections of the Penal Code, to wit, § 189 and § 192. There are four counts in the indictment. The fourth count charges as follows: “for that the said Victor E. Innes and Ida May Innes, in the county aforesaid, on the 29th day of May, . . 1914, with force and arms, having been then and there intrusted by Lois Nelms Dennis - with the sum of three thousand seven hundred forty-five and 20/100 dollars in money, of the value of three thousand seven hundred forty-five and 20/100 dollars, and the property of said Lois Nelms Dennis, for the purpose of investing said sum of money in lands and real estate in Montana and within a radius of forty-six miles of Lewiston in Montana, and in certain lands and real estate in Sonora county in Mexico, and after having been so intrusted by said bailor, Lois Nelms Dennis, for the purposes herein set forth, did wrongfully and fraudulently dispose of said three thousand seven hundred forty-five and 20/100 dollars otherwise than by applying it to the use and for the purposes for which it was intended by said bailor, without her consent and to her injury, and without said bailees, to wit, Victor E. Innes and Ida May Innes, having paid to said bailor the full value and market price thereof, and without having paid to Mrs. Lillie L. Nelms, administratrix on the estate of said Lois Nelms Dennis, on demand m'ade, the full value and market price thereof, contrary to the laws of said State, the good order, peace, and dignity thereof.”
The trial court construed the fourth count to be under the *279first clause oí section 189 of the Penal Code, and the majority of this court hold that “the construction given the indictment by the judge, in the trial of the case and in his charge to the jury, is controlling upon the court, and fixes the law of the case until corrected -as provided by law.” I can not assent to this proposition. If the trial court erroneously construed this count in the indictment, this court is not bound by it. The writer grants that the trial court could have eliminated the count by expressly doing so in the charge-to the jury, but, the defendant having been put in jeopardy-upon this indictment, he was entitled to a verdict of not guilty upon any count that the State failed to make good by proof. Different counts in an indictment under kindred statutes stand as if they were two indictments; and the right to impose sentence, where the verdict is general in such a case, is the right to sentence as for two separate and distinct offenses. Can there be any doubt that the fourth count was drawn under the second clause of section 189 of the Penal Code? To read that section of the code and read the indictment is to answer the question. Does section 189 make two kinds of acts criminal? If so, the State failed to show the one alleged in the fourth count. Is the defendant en- * titled to a verdict of not guilty on that count, or shall a verdict of ' guilty under that count stand, simply because the trial court construed the fourth count to have been drawn under the first clause of section 189 ? In McCoy v. State, 15 Ga. 205, 208, Judge Benning, for the court, in construing the language of this section, said: “These words make two kinds of acts criminal—First, that in which the party fraudulently converts the article to his own use. Second, that in which he otherwise disposes of the article, but to the injury of the owner, and without his consent, and without paying him the full value or market price of the article.. In the first kind, the crime is complete as soon as the party fraudulently converts the article to his own use. Nothing more need happen. It is not necessary that he should also fail to pay the owner full value or market price of the article. In the second class, in which the article is disposed of otherwise than to the use of the party himself, the crime is not made complete by the mere disposing of the article. To make it complete, three other things must also exist—an injury to the owner, the non-consent of the owner, a failure to pay the owner the full value or market price of the thing disposed of.”
*280In the ease of Alderman v. State, 57 Ga. 367, it was held that “An indictment for larceny after trust, under section 4422 [now § 189] or section 4424 [now § 192] of the Code, which charged that defendant did fraudulently convert the goods intrusted to him to his own use, need not charge that the same was done without the consent of the owner or bailor, and to his injury, and without paying him on demand'the full value thereof; these clauses of the sections, or either of them, apply to other disposition of the goods than to the bailee’s fraudulent conversion to his own use, and need only be charged and proven in such cases.” Justice Hall, in Soule v. State, 71 Ga. 267, 270, said: “In the case of McCoy v. State, 15 Ga. 205, 208, which seems to have been well considered, Benning, J., speaking of this statute, and applying it to the case then before the court, and which in its main features is much like the present, said: ‘These words make two kinds of acts criminal: First, that in which the party fraudulently converts the article to his own use. Second, that in which he otherwise disposes of the article, but to the injury of the owner and without his consent, and without paying him the full value or market price of the article. In the first kind, the crime is complete as soon as the party fraudulently converts the article to his own use. Nothing more need happen. It is not necessary that he should also refuse to pay the owner the full value or market price of the article. In the second class, . . to make the crime complete, three other things must also exist—an injury to the owner, the non-consent of the owner, a failure to pay the owner the full value or market price of the thing disposed of,’ and, as we think, upon demand for the same.” The indictment in the case of Cody v. State, 100 Ga. 105 (28 S. E. 106), charged as follows: “For that the said Pearce Cody, on the 21st day of September, in the year 1896, in the county aforesaid, did then and there unlawfully, after having been intrusted by Bob Cherry, the owner thereof, with ninety dollars in paper money of the value- of ninety dollars, and two dollars in silver money, of the value of two dollars, for the purpose of holding and keeping said money for said Bob Cherry, he, the said Pearce Cody, did fraudulently convert the said money to his own use and did otherwise dispose of said money without the consent of said Bob Cherry, the owner thereof, and to the injury of him the said Bob Cherry, and without paying the said Bob Cherry the said *281money or the full market value thereof, on demand, which demand was made.” To this indictment -the defendant, Cody, demurred, and the Supreme Court, in passing upon the question raised, said: “The first ground of demurrer raises the question, whether one who is charged with having been intrusted with money by the owner to hold and keep for him, and who fraudulently converts the same to his own use, is guilty of any violation of the laws of the State. It is true that the bill goes further and charges that the bailee did otherwise dispose of the money without the consent of the bailor- and to his injury and without paying to the bailor on demand said money, or its full market value; but we regard the latter part of the charge as surplusage and as adding no strength to the preceding charge contained in the bill of indictment. Section 191 of the Penal Code' . . [now section 189] provides for the punishment of any factor, commission merchant, warehouse-keeper, wharfinger, wagoner, stage-driver, or common carrier on land or water, or any other bailee with whom any money or any other thing of value may be intrusted or deposited, who shall fraudulently convert the same or any part thereof to his own use, or shall otherwise dispose of the same or any part thereof without the consent of the owner or bailor, to his injury, and without pay-. ing the owner or bailor, on demand, the value or market price of the same. It is manifest from a careful reading of the section above referred to that it provides for two distinct offenses: (1) If any of the bailees named, with whom any money or any other valuable thing” shall be intrusted or deposited, shall fraudulently convert the same or any part thereof to his own use, the statute is broken. (2) If any of such bailees with whom the property shall be intrusted or deposited shall dispose of the same to the injury of the bailor (otherwise than to fraudulently convert it to his own use) without the consent of the bailor, and without paying to the owner or bailor, on demand, the full value or market price, he has committed an offense against which' the statute provides. Each of these acts is made a distinct offense, punishable as provided in the section. McCoy v. State, 15 Ga. 205; Soule v. State, 71 Ga. 270.”
While the learned trial judge was a member of this court, the court, in the case of Raiden v. State, 1 Ga. App. 532 (57 S. E. 989), said: “The Penal Code, § 191 [now § 189], makes two *282kinds of acts criminal: (1) that in which the party fraudulently converts to his own use the money or article intrusted; (2) that in which he otherwise disposes of the same without the consent of the owner 'or bailor, and to his injury, and without paying to such owner or bailor on demand the full value or market price thereof. In the first kind the crime is complete as soon as the party -fraudulently converts the article to his own use. McCoy v. State, 15 Ga. 211. In the second kind the crime is complete (the other elements being present) when demand is made and the full market value or price is not thereupon paid. Yenue for the criminal prosecution lies only in the county where the crime becomes completed in one of the methods above stated.”
I do not think that Sanders v. State, 86 Ga. 717 (12 S. E. 1058), or Keys v. State, 112 Ga. 392 (37 S. E. 762, 81 Am. St. E. 63), is authority to the contrary. In the Sanders case the indictment charged the defendant with fraudulently converting to his own use certain property or otherwise disposing of the same. The indictment in that case was bad because he was not charged positively with any offense. In the Keys case the indictment was framed under section 192 (then section 194), and charged the defendant with having been intrusted with money for the use and benefit of a named person, and with fraudulently having converted the same to his own use to the injury of and without the consent of the bailor. The court held that the allegation, “without the consent of the owner,” was surplusage. There is only one count in the Sanders case, and only one count in the Cody case, and only one count in the Keys case. Fraudulent conversion was alleged in each of these cases. Now, in the Innes case we find not one count, bu.t four counts, based on kindred statutes. We find in effect four separate indictments. The crime charged in one of. the counts, or . one of the indictments, admittedly is not proved, yet a verdict of guilty is allowed to stand, upon the ground that the fourth count in this indictment is mere surplusage. It is my opinion that the charge of the trial court, that “demand in this case is unnecessary under the law and evidence applicable thereto,” not only did not-serve to eliminate the fourth count in this- indictment, but was erroneous for three reasons: (1) Because, before a conviction could be had on the fourth count, proof of demand was necessary. ' (2) Because,' under the majority opinion in this case, it would *283amount to an expression of an opinion that fraudulent conversion had been shown; especially as the court had just charged the jury that they could convict on either or all the counts in the indictment. (3) Because the court had already charged the jury, “If you find this defendant guilty on either one of these counts, you would express in your verdict the count upon which you find a verdict of guilty. For instance, if you find him guilty on the first count, say, ‘We, the jury, find the defendant guilty on the first count;’ and so with the other counts, if you should find him guilty on any one of the other counts, and not guilty on others. But I charge you that while the indictment sets forth the offense in different counts, it merely charges substantially one offense against this defendant and the other defendant. And if you believe beyond a reasonable doubt, from this evidence, that all the counts were violated, not only the general count but the specific count (one of the counts being specific, giving the amounts and dates when the money is alleged to have been obtained, and the fourth count alleging demand and refual to pay), you could find a general verdict of guilty.”/ An instruction that a verdict of guilty could be found on the fourth count without proof of demand, under the facts of this particular case, in effect said to the jury: Fraudulent conversion to the defendant’s own use has been proved; therefore demand is unnecessary. Did the charge of the court eliminate the fourth count? I can not agree that it did.
2. There are other exceptions to the charge of the court which are not without merit.
3. In the opinion of the writer the bailment as alleged in the four counts of the indictment is not proved; neither is the fraudulent conversion shown as alleged; and neither is the venue proved.
In my judgment the general verdict of guilty under the evidence is not authorized. Judex damnatur cum nocens absolvitur; but the guilty must be convicted according to law.