2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 8 - Offenses Involving Theft
Article 1 - Theft
§ 16-8-4. Theft by Conversion

1. A person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. This Code section applies whether the application or disposition is to be made from the funds or property of another or from the accused's own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his own.
2. When, under subsection (a) of this Code section, an officer or employee of a government or of a financial institution fails to pay on an account, upon lawful demand, from the funds or property of another held by him, he is presumed to have intended to convert the funds or property to his own use.
3. 1. As used in this subsection, the term "personal property" means personal property having a replacement cost value greater than $100.00, excluding any late fees and penalties, and includes heavy equipment as defined in paragraph (2) of Code Section 10-1-731 and tractors and farm equipment primarily designed for use in agriculture.
   2. Any person having any personal property in such person's possession or under such person's control by virtue of a lease or rental agreement who fails to return the personal property within five days, Saturdays, Sundays, and holidays excluded, after a letter demanding return of the personal property has been mailed to such person by certified or registered mail or statutory overnight delivery, return receipt requested, at such person's last known address by the owner of the personal property or by the owner's agent shall be presumed to have knowingly converted such personal property to such person's own use in violation of such lease or agreement.
   3. In the event that any personal property is not returned as provided for in the lease or rental agreement and the court orders the lessor or renter to pay replacement costs, replacement costs shall include but not be limited to:
      1. The market value of the personal property. The market value shall be established by the owner of the property by providing from a supplier of such or reasonably similar personal property a current quotation of the value of the personal property which is of like quality, make, and model of the personal property being replaced. The value to be awarded shall be the higher of:
         1. The value on the date when the conversion occurred; or
         2. The value on the date of the trial;
      2. All rental charges from the date the rental agreement was executed until the date of the trial or the date that the property was recovered, if recovered; and
      3. Interest on the unpaid balance each month at the current legal rate from the date the court orders the lessor or renter to pay replacement costs until the date the judgment is satisfied in full.
   4. If as a part of the order of the court the lessor or renter is placed on probation, supervision of said probation shall not be terminated until all replacement costs, fees, charges, penalties, interest, and other charges are paid in full. All payments relative to this Code section shall be made to the appropriate court of jurisdiction and the court shall make distribution to the owner within 30 days of receipt thereof.
   5. In the event that the owner incurs any expenses in the process of locating a lessor or renter who did not return any personal property according to the lease or rental agreement, the court shall provide that the lessor or renter reimburse the owner for those expenses which may include, but not be limited to, credit reports, private detective fees, investigation fees, fees charged by a law enforcement agency for such services as police reports, background checks, fees involved with swearing out a warrant for incarceration, and any other bona fide expenses.

(Code 1933, § 26-1808, enacted by Ga. L. 1968, p. 1249, § 1; Ga. L. 1969, p. 857, § 16; Ga. L. 1988, p. 763, § 1; Ga. L. 1994, p. 650, § 1; Ga. L. 1997, p. 414, §§ 1, 2; Ga. L. 2000, p. 1589, § 4.)

- Form of complaint for actions based on allegation of conversion, § 9-11-111.

Theft by conversion of funds collected for benefit of state pursuant to laws relating to revenue and taxation, § 48-1-5.

- Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment to this section is applicable with respect to notices delivered on or after July 1, 2000.

- For survey article on criminal law and procedure, see 34 Mercer L. Rev. 89 (1982). For annual survey of criminal law, see 58 Mercer L. Rev. 83 (2006). For note on the 1994 amendment of this Code section, see 11 Ga. St. U.L. Rev. 126 (1994).

ANALYSIS

• General Consideration
• Application
• Jury Instructions
• Sentencing

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Penal Code 1910, § 186 and former Code 1933, §§ 26-2801, 26-2803, 26-2805, 26-2806, 26-2808, 26-2809, and 26-2812, as they read prior to revision of title by Ga. L. 1968, p. 1249, are included in the annotations for this Code section. Additionally, decisions under former § 16-8-19 are included in the annotations for this Code section.

- See Jackson v. State, 234 Ga. 621, 216 S.E.2d 864 (1975).

Trial court correctly held that the provisions, defining the crime of conversion of leased personal property, were not unconstitutional, either as written or as applied in this case. Laster v. Star Rental, Inc., 190 Ga. App. 1, 378 S.E.2d 320, cert. denied, 493 U.S. 829, 110 S. Ct. 97, 107 L. Ed. 2d 61 (1989) (decided under former § 16-8-19).

Theft-by-conversion statute is not unconstitutionally vague and provides more than adequate notice to a person of ordinary intelligence that a trustee's intentional appropriation of trust funds for the person's personal use and for speculative business ventures is criminal conduct. Connally v. State, 265 Ga. 563, 458 S.E.2d 336 (1995).

Mandatory statutory presumption in O.C.G.A. § 16-8-4(c)(2), that if the state proves that the demand letter was sent in accordance with the statute, the defendant "shall be presumed" to have committed the elements of the crime of theft by conversion of leased property, is unconstitutional. Sherrod v. State, 280 Ga. 275, 627 S.E.2d 36 (2006).

Legislative purpose of former Code 1933, § 26-1808 was to punish for the fraudulent conversion, and not for a failure to comply with a contractual obligation. It follows that the section was not unconstitutional for violating due process, creating involuntary servitude, or imprisoning for debt. Smith v. State, 229 Ga. 727, 194 S.E.2d 82 (1972) (see O.C.G.A. § 16-8-4).

Conversion at law is: "An unauthorized assumption and exercise of the right of ownership over goods or personal chattels belonging to another, to the alteration of their condition or the exclusion of the owner's rights." Butler v. State, 84 Ga. App. 492, 66 S.E.2d 199 (1951) (decided under former Code 1933, § 26-2809).

- In both embezzlement and larceny after trust the possession of the accused of the property is lawfully obtained, whereas in simple larceny the possession of the property by the accused is always unlawfully obtained. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2803).

Embezzlement differs from larceny in that in embezzlement the accused comes into possession lawfully, whereas in larceny the property comes into the hands of the thief secretly and unlawfully. In the former there is an entrustment and in the latter there is not. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2803).

- In a declaratory judgment case in which three intended beneficiaries alleged that an insurance company violated O.C.G.A. §§ 16-8-2,16-8-3, and16-8-4, those criminal statutes did not create a private cause of action. Am. Gen. Life & Accident Ins. Co. v. Ward, 509 F. Supp. 2d 1324 (N.D. Ga. Mar. 12, 2007).

Mortgage borrower could not bring civil claims against a loan servicer under O.C.G.A. §§ 16-8-2,16-8-3, and16-8-4, which were criminal statutes prohibiting theft by taking, by conversion, and by deception; the statutes did not purport to create a private cause of action. Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366 (N.D. Ga. 2012).

Sole issue is whether defendant with intent to defraud has misappropriated money with which entrusted, and the mere fact that the prosecuting witness may be indebted to other parties would have nothing to do with that issue. Gatling v. State, 102 Ga. App. 226, 115 S.E.2d 823 (1960) (decided under former Code 1933, § 26-2812).

Fraudulent intent is implicit in the definition of conversion. Corbitt v. Harris, 182 Ga. App. 81, 354 S.E.2d 637 (1987), overruled on other grounds, Lau's Corp. v. Haskins, 261 Ga. 491, 405 S.E.2d 474 (1991).

- Gravamen of the offense clearly is fraudulent conversion, not failure to comply with a contractual obligation. Baker v. State, 131 Ga. App. 48, 205 S.E.2d 79 (1974), later appeal, 135 Ga. App. 500, 218 S.E.2d 171 (1975).

It is the presence of a fraudulent intent that distinguishes theft by conversion from a simple breach of contract. Baker v. State, 143 Ga. App. 302, 238 S.E.2d 241 (1977).

It is essential to show a conversion of another's property to the defendant's own use in order to fit within the definition of theft by conversion (Georgia's equivalent of embezzlement). Mullis v. Walker, 7 Bankr. 563 (Bankr. M.D. Ga. 1980).

Mere proof that a project contracted for cost a designated sum over and above the contract price after the contractor's quasi-abandonment is irrelevant to a conversion charge, the question being whether the contractor took funds paid the contractor for the construction and knowingly put them to other uses. Baker v. State, 131 Ga. App. 48, 205 S.E.2d 79 (1974), later appeal, 135 Ga. App. 500, 218 S.E.2d 171 (1975).

- Trial court erred by failing to dismiss the plaintiff's claim for theft as a predicate offense under the Georgia RICO statute because a fraudulent transfer was not an enumerated predicate offense under the Georgia RICO statute, but instead, a civil tort governed by the Uniform Voidable Transactions Act, O.C.G.A. § 18-2-70 et seq. Z-Space, Inc. v. Dantanna's CNN Center, LLC, 349 Ga. App. 248, 825 S.E.2d 628 (2019).

- When an ice company entrusts the company's employee with a book of ice tickets for the purpose of selling the tickets to a customer of the company and returning to the company the money thus obtained, and the employee sells the book to the customer for $3.00 and collects the money, the employee is, in legal contemplation, entrusted by the ice company with the money collected; and when the employee returns only $1.00 to the company, and fraudulently converts the other $2.00 to the employee's own use, the employee is guilty of larceny after trust. Dukes v. State, 52 Ga. App. 200, 182 S.E. 803 (1935) (decided under former Code 1933, § 26-2809).

When one entrusted with money by another fraudulently converts the money to one's own use, one is guilty of larceny after trust, though one may have fraudulently induced the delegation of the trust with intent to so convert the money. Lewis v. State, 90 Ga. App. 53, 81 S.E.2d 856 (1954) (decided under former Code 1933, § 26-2809).

Case of larceny after a trust arises when there is an agency on the part of the person entrusted with the property of another by virtue of which the person so entrusted is to do something with the property for the principal's benefit, or where there is a bailment of some description. Dennison v. State, 91 Ga. App. 143, 85 S.E.2d 179 (1954) (decided under former Code 1933, §§ 26-2806, 26-2808).

- When money is entrusted to a person for a specific purpose and the person in good faith retains the money in order to obtain a just settlement which grew out of matters involved in the same transaction believing the person had a right so to do the person is not guilty of larceny after trust, for theoretically, if the prosecutor would give back to the defendant the person's property, the defendant would give back to the prosecutor the person's property; in other words, there would only be a retention in good faith pending a just settlement of debts and not a fraudulent conversion which is a necessary element in larceny after trust. McJenkin v. State, 62 Ga. App. 321, 7 S.E.2d 812 (1940) (decided under former Code 1933, § 26-2809).

Embezzlement is fraudulent conversion. Mullis v. Walker, 7 Bankr. 563 (Bankr. M.D. Ga. 1980).

Former Code 1933, § 26-1808 (see O.C.G.A. § 16-8-4) provided a criminal penalty for obtaining money under lawful agreement and then knowingly converting funds to own use. Smith v. State, 229 Ga. 727, 194 S.E.2d 82 (1972).

- Trial court erred denying the defendants summary judgment on the claims alleging that the defendants committed the criminal offenses of theft by taking, theft by deception, and theft by conversion because the violation of a penal statute did not automatically give rise to a civil cause of action on the part of one who was injured thereby and plaintiff made no showing that the alleged penal violations gave rise to civil liability. McCalla Raymer, LLC v. Foxfire Acres, Inc., Ga. App. , 846 S.E.2d 404 (2020).

- An indictment charging in substance that a sum of money was entrusted by the owner to another to be applied to the use and benefit of the owner, and that the one to whom the money was entrusted fraudulently converted the same to one's own use without the owner's consent, was sufficient in law. Brandt v. State, 71 Ga. App. 221, 30 S.E.2d 652 (1944) (decided under former Code 1933, § 26-2809).

- Defendant's conviction of theft by conversion, O.C.G.A. § 16-8-4(a), was supported by sufficient evidence; evidence of defendant's failure to return a rented wood chipper, defendant's admitted lies regarding defendant's address and phone number, and defendant's flight after charges were filed was sufficient under O.C.G.A. § 16-2-6 for the jury to conclude that defendant fraudulently converted the chipper to defendant's own use. Terrell v. State, 275 Ga. App. 501, 621 S.E.2d 515 (2005).

- Venue in prosecution for larceny after trust may be laid in the county where the property was entrusted, although the physical conversion of it was in another county, where the facts of the case authorized the jury to find that the intent to convert the money was formed in the county where the property was entrusted. Price v. State, 76 Ga. App. 283, 45 S.E.2d 462 (1947) (decided under former Code 1933, § 26-2809).

When the evidence authorized the jury to infer that at the time the money was entrusted by the plaintiff for a specific purpose, in Fulton County, the defendant intended to convert the money to defendant's own use and not to apply the money to the benefit and use of the owner so entrusting the money, the venue could be laid in Fulton County. Price v. State, 76 Ga. App. 283, 45 S.E.2d 462 (1947) (decided under former Code 1933, § 26-2809).

Venue is sufficiently established in a case when the indictment charges fraudulent conversion of money to have taken place in a certain county, when the defendant makes a solemn admission in judicio that the payments were made to the defendant as charged in the indictment, and when the admission as to the place the payments were made is corroborated by slight evidence. Ramer v. State, 76 Ga. App. 678, 47 S.E.2d 174 (1948) (decided under former Code 1933, § 26-2812).

Venue in Georgia was proper, despite the car being leased by the defendant in Tennessee and the conversion taking place well before arrival in Georgia, because the defendant was seen exercising control over the car in Georgia in Gordon County; thus, venue was appropriate in that county. Jones v. State, 337 Ga. App. 687, 787 S.E.2d 330 (2016).

- Defendant's convictions for theft by conversion and a RICO violation were reversed because the state failed to carry the state's burden to prove that the defendant was indicted on the counts within the applicable statutes of limitation as the evidence showed that the victims, and therefore the state, had actual knowledge of the offenses more than five years prior to the June 12, 2009 indictment, and the state produced no evidence or argument to the contrary. Jannuzzo v. State, 322 Ga. App. 760, 746 S.E.2d 238 (2013).

- In an action for theft by conversion, the verdict was a legal nullity as to five counts because, although the jury found the defendant guilty as a fiduciary, the jury specifically found the defendant not guilty of theft by conversion and, thus, the findings were at best ambiguous and a fair reading of the verdict readily included the possibility that the defendant was acting in a fiduciary capacity for the employer but was not guilty of theft by conversion. Jackson v. State, 349 Ga. App. 368, 825 S.E.2d 848 (2019).

Cited in Jackson v. State, 137 Ga. App. 192, 223 S.E.2d 239 (1976); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Partain v. State, 138 Ga. App. 171, 225 S.E.2d 736 (1976); Eubanks v. State, 141 Ga. App. 569, 234 S.E.2d 95 (1977); State v. Eubanks, 239 Ga. 483, 238 S.E.2d 38 (1977); Eubanks v. State, 144 Ga. App. 152, 241 S.E.2d 6 (1977); Lewis v. State, 150 Ga. App. 791, 258 S.E.2d 708 (1979); Steele v. State, 154 Ga. App. 59, 267 S.E.2d 500 (1980); Salter v. State, 163 Ga. App. 655, 294 S.E.2d 612 (1982); Greyhound Lines v. Thurston, 18 Bankr. 545 (Bankr. M.D. Ga. 1982); Exley v. State, 180 Ga. App. 821, 350 S.E.2d 829 (1986); F & M Bank v. Brinsfield, 78 Bankr. 364 (Bankr. M.D. Ga. 1987); Colonial-Interstate, Inc. v. Ayers, 83 Bankr. 83 (Bankr. M.D. Ga. 1988); Tenney v. State, 194 Ga. App. 820, 392 S.E.2d 294 (1990); Jackson v. State, 209 Ga. App. 53, 432 S.E.2d 649 (1993); Flanders v. State, 217 Ga. App. 73, 456 S.E.2d 604 (1995); Graves v. Brown, 237 Ga. App. 589, 516 S.E.2d 324 (1999); Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003); Patterson v. State, 289 Ga. App. 663, 658 S.E.2d 210 (2008).

Application

Wife's action for conversion of her property.

- Trial court erred by finding that a wife could not proceed against her former husband on claims relating to his conversion of stock certificates owned solely in her name. Fleming v. Fleming, 246 Ga. App. 69, 539 S.E.2d 563 (2000).

- An officer or agent of a corporation cannot take money of a corporation entrusted to the officer, or in the officer's possession by virtue of the officer's official relation or agency, and use it even temporarily for the officer's private benefit and avoid criminal responsibility by calling it a loan; such a transaction is a wrongful conversion, from which a fraudulent intent can be inferred. Denmark v. State, 44 Ga. App. 157, 161 S.E. 286 (1931) (decided under former Penal Code 1910, § 186).

- Taxpayers' complaint for a refund was dismissed as the taxpayers were not entitled to a theft loss deduction under 26 U.S.C. § 165(e) with respect to a decline in value of publicly traded stock after the taxpayer husband exercised his stock options because they did not show that they were victims of either a theft by taking, theft by deception, theft by conversion, or theft of services under O.C.G.A. § 16-8-2, O.C.G.A. § 16-8-3, O.C.G.A. § 16-8-4, or O.C.G.A. § 16-8-5. The taxpayers were only entitled to capital loss deductions under 26 U.S.C. § 2511. Schroerlucke v. United States, 100 Fed. Cl. 584 (Fed. Cl. 2011).

- There is no authority for an executor, administrator, guardian or trustee to take the money entrusted to the trustee and convert the same to the trustee's own use. On the contrary, such conversion may amount to a crime. Thomas v. State, 87 Ga. App. 765, 75 S.E.2d 193 (1953) (decided under former Code 1933, § 26-2805).

- An officer of a corporation may be guilty of embezzlement although the conversion is accomplished through the instrumentality of the corporation. Bailey v. State, 84 Ga. App. 839, 67 S.E.2d 830 (1951) (decided under former Code 1933, § 26-2809).

Plaintiff could not claim unlawful conversion or misappropriation of ideas with respect to customer lists since it was shown that the defendant corporation already had the lists, and that plaintiff had made no effort to protect the lists. Kitfield v. Henderson, Black & Greene, 231 Ga. App. 130, 498 S.E.2d 537 (1998).

- Because this is a species of larceny after trust, it is the larcenous intent, not merely the failure to pay, which must be proved. Baker v. State, 131 Ga. App. 48, 205 S.E.2d 79 (1974), later appeal, 135 Ga. App. 500, 218 S.E.2d 171 (1975).

One in possession but never in lawful possession of funds of another cannot be convicted of theft by deception. Partain v. State, 129 Ga. App. 213, 199 S.E.2d 549 (1973).

When the funds were not obtained lawfully, but were obtained unlawfully, the defendant is not guilty of theft by conversion. Callaway v. State, 165 Ga. App. 862, 303 S.E.2d 42 (1983).

- When the defendant contended that the evidence showed that when the defendant came into possession of the victims' $10,000 on July 16, 1981, the defendant did not intend to make the specified application of the funds, thereby making the defendant's acquisition of the money unlawful, removing the defendant's conduct from the scope of theft by conversion alleged in the indictment, it was held that this argument was without merit as the subjective intention to convert the funds manifested itself after July 16, 1981, when the defendant used the majority of the $10,000 to pay the defendant's personal debts. Prior to the wrongful application of the funds, the defendant had the right and responsibility to possess the victims' money with authority to use the funds for the "specified application"; i.e., for an investment which would produce tax-exempt income at a rate of 15 percent per annum. Mason v. State, 180 Ga. App. 235, 348 S.E.2d 754 (1986).

- When the state established only that the defendant rented video equipment and failed to return the equipment, but failed to show that the defendant knowingly and with fraudulent intent appropriated the equipment for defendant's own use, the evidence was insufficient to convict. Barrett v. State, 207 Ga. App. 370, 427 S.E.2d 845 (1993).

Evidence that the defendant took a consignor's furniture and agreed to give the consignor $500 from the sale of the furniture, that the consignor never received the money, and that the defendant was never at the shop when the consignor attempted to speak with the defendant was insufficient to show fraudulent intent supporting the defendant's conviction. Scarber v. State, 211 Ga. App. 260, 439 S.E.2d 83 (1993).

- Proof of conversion vel non lies in the explanation or failure to explain proved discrepancies between amounts received and disbursements going toward the completion of the contract. Lovell v. State, 235 Ga. App. 140, 508 S.E.2d 771 (1998).

- Since a defendant may be convicted as a party to the crime of conversion, without first having lawfully obtained the funds, under former Code 1933, § 26-1808 (see now O.C.G.A. § 16-8-4), it necessarily follows that the defendant may also be punished without having been a government employee if the property was taken by an officer or employee of a government institution under former Code 1933, § 26-1812 (see now O.C.G.A. § 16-8-12). Garrett v. State, 243 Ga. 322, 253 S.E.2d 741 (1979).

Grantor of deed to secure debt cannot be convicted for selling equitable interest in the property and failing to turn over the proceeds to the grantee, because defendant's retention of the equitable interest meant that an essential element of the offense, of possession of the accused of the funds of another person, was missing. King v. State, 177 Ga. App. 281, 339 S.E.2d 353 (1985).

- O.C.G.A. § 16-8-4 does not require converted funds to be titled in the accused's name; it merely sets forth that the funds or property be knowingly converted to the accused's "own use." Cochran v. State, 204 Ga. App. 602, 420 S.E.2d 32, cert. denied, 204 Ga. App. 921, 420 S.E.2d 32 (1992).

- Contract debt, not being "certain" coins and bills, or some other certain physical thing representing moneys, was not subject to an act in tort for conversion. Faircloth v. A.L. Williams & Assocs., 206 Ga. App. 764, 426 S.E.2d 601 (1992).

- When the state introduced evidence which authorized a finding that the defendant was given $10,000 by the victims to be used for an investment which would yield nontaxable interest at a rate of 15 percent per annum and the evidence concerning the disposition of this money showed that the defendant did not invest the $10,000 in a way so as to produce nontaxable income for the victims, but, instead converted the money to defendant's own use by paying defendant's personal debts, the evidence adduced at trial was sufficient to convince a rational finder of fact that the defendant was guilty beyond a reasonable doubt of theft by conversion. Mason v. State, 180 Ga. App. 235, 348 S.E.2d 754 (1986).

- Even though the broker contended that the proceeds from the sale of the diamond on consignment were used to pay business debts, the court was persuaded that the broker used the proceeds for the broker's personal use, since the evidence did not show that the broker's business was a corporation and the consignment memorandum was signed with the broker's name. Sandalon v. Cook, 141 Bankr. 777 (Bankr. M.D. Ga. 1992).

Evidence was sufficient to support an inference that the defendant fraudulently converted a client's automobile premium payment to the defendant's own use for purposes of a felony theft by conversion conviction because: (1) the client gave the defendant a premium payment and received a receipt; (2) the defendant did not use the payment to pay the client's premium; (3) the defendant abandoned the insurance office without notifying the client; and (4) although the defendant purportedly established an office in another town, the defendant failed to return the client's telephone calls, and the client was unable to find the defendant in that town. Cox v. State, 275 Ga. App. 895, 622 S.E.2d 11 (2005).

Defendant's contention that the defendant could only be ordered to recompense the victims of the defendant's conversion of certain earnest money deposits for those funds the defendant used for personal expenses, as opposed to corporate expenses, lacked foundation in the law. As used in O.C.G.A. § 16-8-4(a), the language regarding the conversion of the funds for the defendant's own used did not not refer exclusively to using the funds for unapproved personal expenses; rather, it referred to using the funds for a purpose other than the purpose specified in the defendant's agreement with the victims to build homes for the victims. Hartsell v. State, 288 Ga. App. 552, 654 S.E.2d 662 (2007).

- When two payments are given to an appellant to pay for a heating system and appellant ultimately pays for the system with borrowed funds, the jury is authorized to find that the appellant appropriated the payments to the appellant's own use. Baker v. State, 143 Ga. App. 302, 238 S.E.2d 241 (1977).

- Language, "regardless of the manner in which said property is taken or appropriated" in O.C.G.A. § 16-8-2 renders that section sufficiently broad to encompass theft by conversion as prohibited by O.C.G.A. § 16-8-4. Ray v. State, 165 Ga. App. 89, 299 S.E.2d 584 (1983).

- Because the defendant borrowed a car in exchange for crack cocaine, and knew that the person lending the car did automobile body work for others and that the car was clearly undergoing body work, sufficient evidence supported the conviction for receiving stolen property under O.C.G.A. § 16-8-7(a); a jury could have found that the defendant knew or should have known that the lender had no authority to loan the car and that the lender had converted the car to the lender's own use by renting the car to the defendant in violation of O.C.G.A. § 16-8-4(a) prohibiting theft by conversion and O.C.G.A. § 16-8-2 prohibiting theft by taking. McKinney v. State, 276 Ga. App. 75, 622 S.E.2d 427 (2005).

- When the defendant was acquitted on theft by taking charges and the total amount of the checks involved in the alleged theft by conversion was only a little over $2,000, error committed by the trial court in refusing to allow the defendant to present evidence showing the defendant's lack of an extravagant lifestyle was harmless. Cook v. State, 256 Ga. 808, 353 S.E.2d 333, cert. denied, 484 U.S. 821, 108 S. Ct. 80, 98 L. Ed. 2d 42 (1987).

- Embezzlement is a species of larceny, and in prosecutions for the former offense, as in those for the latter, ownership of the property alleged to have been stolen is a necessary averment. Scarboro v. State, 207 Ga. 449, 62 S.E.2d 168 (1950) (decided under former Code 1933, § 26-2801).

- Embezzlement is a species of larceny; any legal interest in the property wrongfully converted, although less than the absolute title, will support an allegation of ownership, but there must be an actual legal interest, not a mere claim or expectation of interest. Scarboro v. State, 207 Ga. 449, 62 S.E.2d 168 (1950); Land v. State, 103 Ga. App. 496, 119 S.E.2d 809 (1961) (decided under former Code 1933, § 26-2801).

- When there is a continuous series of conversions of property of the owner entrusted to the defendant, the offense may be charged in a single count of the indictment since such series of transactions constitute but a single embezzlement. Simmons v. State, 79 Ga. App. 390, 53 S.E.2d 772 (1949) (decided under former Code 1933, § 26-2803).

- When a contractor committed three acts of theft by conversion, based on three separate failures to apply three separate payments to the purpose specified for each such payment, three sequential but entirely separate crimes were committed against the same victims, authorizing a conviction and separate sentence for each. Lovell v. State, 235 Ga. App. 140, 508 S.E.2d 771 (1998).

In a garnishment action, no conversion occurred because the freezing of defendant's assets was precipitated by operation of the garnishment statute, not plaintiff's own doing. ISP Alliance, Inc. v. Physiotherapy Assocs., 238 Ga. App. 436, 519 S.E.2d 241 (1999).

- For purposes of an insurance policy, a customer's conduct of leasing heavy equipment from the insured, paying for the equipment with checks that were returned for insufficient funds, and failing to return the equipment constituted criminal conversion under Georgia law. Rentrite, Inc. v. Sentry Select Ins. Co., 293 Ga. App. 643, 667 S.E.2d 888 (2008).

Trial court erred in granting an insurer's motion for summary judgment in an insured's action alleging breach of contract and bad faith due to the insurer's decision to deny an insurance claim for the purported theft loss of a vehicle because there was evidence from which a jury could find that the insured's loss was covered by the theft provisions of the policy; there was evidence from which a jury could find the fraudulent intent required to commit theft by conversion in violation of O.C.G.A. § 16-8-4. Byrd v. United Servs. Auto. Ass'n, 317 Ga. App. 280, 729 S.E.2d 522 (2012).

- Jury verdict was not mutually exclusive because the two crimes of theft by conversion and bringing stolen property into the state logically mutually existed, that is, the evidence before the jury authorized the jury to conclude both that the defendant converted the leased car to the defendant's own use outside of Georgia and that the defendant brought the same car into Georgia. Jones v. State, 337 Ga. App. 687, 787 S.E.2d 330 (2016).

- In finding the defendant guilty of bringing stolen property into the State of Georgia and theft by conversion of the same property, the jury necessarily reached two positive findings of fact that could not logically and mutually exist and, thus, the verdicts were mutually exclusive. Jones v. State, 302 Ga. 730, 808 S.E.2d 655 (2017).

- See Wright v. State, 179 Ga. App. 325, 346 S.E.2d 361 (1986); Tukes v. State, 250 Ga. App. 117, 550 S.E.2d 678 (2001).

When the defendant routinely purchased property under his wife's name, the jury was authorized to conclude that the conversion which defendant was instrumental in performing was for his use. Furthermore, the evidence of defendant's conduct before, during, and after the conversion was sufficient to enable the jury to find beyond a reasonable doubt that he was a party to the codefendant's conversion of the victims' funds. Cochran v. State, 204 Ga. App. 602, 420 S.E.2d 32, cert. denied, 204 Ga. App. 921, 420 S.E.2d 32 (1992).

Evidence that the defendant gave the defendant's mother a check made out to the defendant by the victim as advance to purchase tires, and asked the mother to cash the check at the mother's bank, was sufficient to prove that the defendant converted money given to the defendant. Cottrell v. State, 210 Ga. App. 55, 435 S.E.2d 272 (1993).

Based on evidence of outlandish promises and irregular procedures found in the defendant's investment scheme, the jury was authorized to infer fraudulent intent based on the circumstances of the transaction. Sinyard v. State, 243 Ga. App. 218, 531 S.E.2d 140 (2000).

Defendant's conviction for theft by conversion was supported by sufficient evidence because the conviction did not depend on the value of the stolen property, which was relevant only for purposes of distinguishing between a misdemeanor and a felony, therefore, the owner's testimony that the televisions had some value authorized the jury to find the defendant guilty, beyond a reasonable doubt, of misdemeanor theft by conversion. Williams v. State, 328 Ga. App. 898, 763 S.E.2d 280 (2014).

- Insurance agent's conviction was reversed, where the agent's testimony that the agent properly applied cash given the agent by a policy applicant to the purpose for which it was intended was uncontradicted by any evidence proffered by the state. Tchorz v. State, 197 Ga. App. 185, 397 S.E.2d 619 (1990).

Evidence did not authorize a finding that defendant obtained $2,500.00 from another person "under an agreement or other known legal obligation to make a specified application" thereof, where the other person freely gave the money to defendant in return for defendant's promise personally to provide certain future services and gave no specific directions as to how the money was to be applied by defendant. Hill v. State, 198 Ga. App. 1, 401 S.E.2d 48 (1990).

Criminal conviction for theft by conversion could not be sustained where the state did not prove that the defendant, a contractor who had agreed to make renovations to a house, obtained money from the complainant under an agreement to make a specified application of such funds and that defendant knowingly converted the money. Myrick v. State, 210 Ga. App. 393, 436 S.E.2d 100 (1993).

Evidence that a contractor converted money that had been paid to the contractor to construct and install cabinets in the owner's house was insufficient for conviction, where the contractor delivered a few cabinets of "shoddy construction," but there was no evidence that defendant was obligated to apply any portion of the contract price to specific materials of identifiable quality. Lovell v. State, 235 Ga. App. 140, 508 S.E.2d 771 (1998).

State of Georgia did not offer sufficient evidence at trial from which a reasonable trier of fact might have concluded beyond a reasonable doubt that the defendant, a mechanic, converted a van, which the defendant had promised to the owner of the van to repair but apparently never did, in violation of O.C.G.A. § 16-8-4(a). Thomas v. State, 308 Ga. App. 331, 707 S.E.2d 547 (2011).

Failure to charge jury on issue of character of defendant was reversible error since the defendant's character was an issue in the trial of the case. Chastain v. State, 177 Ga. App. 236, 339 S.E.2d 298 (1985).

- When, on the trial of one charged with fraudulent or criminal conversion, the defendant introduced considerable evidence and made a statement to the effect that the transaction was a loan instead of an entrustment, it was not error for the court to charge the law of (a) fraudulent or criminal conversion, (b) simple or civil conversion, and (c) civil liability notwithstanding criminal liability in connection with the same transaction, nor was it error for the court to instruct the jury as to the meaning of the term conversion. Brandt v. State, 71 Ga. App. 221, 30 S.E.2d 652 (1944) (decided under former Code 1933, § 26-2809).

Sentencing

Imprisonment for conversion not unconstitutional.

- Imprisonment as a sentence for a conviction of theft by conversion does not violate Ga. Const. 1983, Art. I, Sec. I, Para. XXIII, prohibiting imprisonment for debt, because the Constitution does not forbid imprisonment for criminal conduct merely because the criminal conduct also results in civil debt. Connally v. State, 265 Ga. 563, 458 S.E.2d 336 (1995).

- After the defendant was convicted on 52 counts related to the defendant's theft of more than $600,000 as the operator of a Ponzi scheme, although the trial court did not err in failing to merge the defendant's convictions for theft by conversion and theft by deception into the defendant's convictions for theft by taking, because theft by taking proscribed certain criminal conduct generally, while theft by conversion and theft by deception were specific crimes, the defendant's convictions for theft by taking merged into the defendant's convictions for theft by conversion and theft by deception; thus, the defendant's sentences for theft by taking were vacated, and the case was remanded to the trial court for resentencing. Mathis v. State, 343 Ga. App. 206, 807 S.E.2d 4 (2017), cert. dismissed, No. S18C0491, 2018 Ga. LEXIS 316 (Ga. 2018).

- With regard to a defendant's convictions for six counts of theft by taking, in violation of O.C.G.A. § 16-8-2, and six counts of felony theft by conversion, in violation of O.C.G.A. § 16-8-4(a), because there was sufficient evidence to prove each count as a separate and distinct act, merger was inappropriate and the defendant was properly convicted on all 12 counts. Kohlhaas v. State, 284 Ga. App. 79, 643 S.E.2d 350 (2007).

- Because the defendant conceded to converting the funds of two victims when the defendant entered guilty pleas to two counts of theft by conversion under O.C.G.A. § 16-8-4, under O.C.G.A. § 17-14-7(b) the state was only required to establish the amounts taken from the victims that were expended on their behalf or were already repaid to the victims; the trial court's restitution order, which took those amounts into consideration, as required by O.C.G.A. § 17-14-6(a), was proper. Hartsell v. State, 288 Ga. App. 552, 654 S.E.2d 662 (2007).

Evidence was sufficient to support the trial court's determination of the amount of restitution awarded based on the rental agreements requiring the defendant to either make monthly payments on the televisions or return the televisions; the agreements provided for a total $2,797.90 in monthly payments, defendant made only $573.60 in payments, and never returned the televisions. Williams v. State, 328 Ga. App. 898, 763 S.E.2d 280 (2014).

Former Code 1933, § 26-1808 (see now O.C.G.A. § 16-8-4) did not provide for imprisonment for debt. Clontz v. State, 140 Ga. App. 440, 231 S.E.2d 454 (1976).

RESEARCH REFERENCES

Am. Jur. 2d.

- 26 Am. Jur. 2d, Embezzlement, § 1 et seq. 50 Am. Jur. 2d, Larceny, §§ 40, 91 et seq.

- 52B C.J.S., Larceny, §§ 58, 68.

- Intent to convert property to one's own use or to the use of third person as element of larceny, 12 A.L.R. 804.

Individual criminal responsibility of officer or employee for larceny or embezzlement, through corporate act, of property of third person, 33 A.L.R. 787.

Misappropriation by officer or employee of depository or bailee as sustaining a criminal charge against him of embezzlement of property of depositor or bailor, 45 A.L.R. 933.

What amounts to embezzlement or larceny within fidelity bond, 56 A.L.R. 967.

Appropriation or removal without payment of property delivered in expectation of immediate cash payment, as criminal offense, 83 A.L.R. 441.

Transfer of possession of personal property with owner's consent, obtained by fraud, as conversion, 95 A.L.R. 615.

Liability as to conversion of stock or securities as affected by fact that party charged with conversion was in possession of other stock or securities of same type, 104 A.L.R. 1114.

General denial by answer in action for conversion or replevin as permitting proof of special title, lien, or right of possession, 104 A.L.R. 1154.

What amounts to concealment which will prevent running of limitation against prosecution for embezzlement, 110 A.L.R. 1000.

Negative conduct as basis of claim of conversion, 116 A.L.R. 870.

What constitutes public funds or public money within embezzlement statute, 123 A.L.R. 478.

Distinction between larceny and embezzlement, 146 A.L.R. 532.

"Defalcation" within provisions of Bankruptcy Act excepting from discharge debts of fiduciary or officer, 163 A.L.R. 1008.

Nature of property or rights other than tangible chattels which may be subject of conversion, 44 A.L.R.2d 927.

Rights of owner of stolen money as against one who won it in gambling transaction from thief, 44 A.L.R.2d 1242.

Conversion by promoter of money paid for a preincorporation subscription for stock shares as embezzlement, 84 A.L.R.2d 1100.

Drawing of check on bank account of principal or employer payable to accused's creditor as constituting embezzlement, 88 A.L.R.2d 688.

When statute of limitations begins to run against criminal prosecution for embezzlement, fraud, false pretenses, or similar crimes, 77 A.L.R.3d 689.

When statute of limitations begins to run against action for conversion of property by theft, 79 A.L.R.3d 847.

Where is embezzlement committed for purposes of territorial jurisdiction or venue, 80 A.L.R.3d 514.

Bank officer's or employee's misapplication of funds as state criminal offense, 34 A.L.R.4th 547.

What constitutes tax-deductible theft loss under 26 USCS § 165, 98 A.L.R. Fed. 229.

What constitutes violation of 15 USCS § 714m(c), proscribing larceny or conversion of property owned by or pledged to Commodity Credit Corporation, 109 A.L.R. Fed. 871.

What is "property of another" within statute proscribing larceny, theft, or embezzlement of property of another, 57 A.L.R. 6th 445.