¶1dissenting.
¶2The prosecutor in this case paid the defendant for the construction of a swimming pool, and defendant did not pay for the material and labor that went into the pool. Prosecutors proceeded under Code Ann. § 26-1808, and *195secured a conviction.
¶3The prosecutor had ample remedy by requiring the defendant to make an affidavit as provided for in Code Ann. § 67-2001 (2), to the effect that defendant had been paid for all material and labor, before the owner made payment to the contractor. They ignored this remedy and placed the money in defendant’s hands without requiring such affidavit.
¶4When the money was placed in defendant’s hands, it became his money, albeit he owed for material and labor. Under these circumstances, if he failed to pay for them (which was proven to be the case), then both the owner and those who furnished material and labor had the right to proceed against him in a civil action.
¶5In my opinion, Code § 26-1808 is much too broad, in part, to be effective. This statute makes it a crime to fail to pay money over to others "under an agreement or other known legal obligation.” (Emphasis supplied.) If the owners had attached a condition to the payment that he must use it to pay for labor and material, it would have been criminal not to do so. But the broad and general language "or other known obligation” in my opinion would make every employee, who receives a salary, a criminal if he did not use that salary for paying his "known legal obligation[s].”
¶6Suppose the bank pays its teller, and the teller fails to pay the rent and grocery bill? Here, he would be guilty because these are "known legal obligation[s].” Is it intended that the statute shall be that broad? Is every person guilty who does not pay his debts? This runs squarely counter to the constitutional provision as set forth in Code Ann. § 2-121: "There shall be no imprisonment for debt.”
¶7It is said that Georgia was settled by persons who were in prison in England for debt, and were brought to these shores to start a new life where there would be no imprisonment for debt. Respectable historians dispute this slander on our heritage and contend that all of our forebears were noble characters, "poor but proud.” Be that as it may, we do have the constitutional provision set forth above in our State Constitution.
¶8We are quite conversant with Smith v. State, 229 Ga. *196727 (194 SE2d 82) wherein the Supreme Court held this statute to be constitutional, but it dealt only with that part of the statute where there was an agreement to use the funds for a specified purpose and not with that part where there was merely a known legal obligation, and consequently, any part of this decision which suggests the entire statute is constitutional is mere obiter dictum and not binding. Mobley v. Macon Nat. Bank, 42 Ga. App. 267 (1) (155 SE 778), affirmed in 174 Ga. 256 (162 SE 708). (The Supreme Court has not repealed the rule as to obiter dictum so far as we can learn.)
¶9Recently, the Supreme Court held in the case of Hall v. Hopper, 234 Ga. 625, 632 (216 SE2d 839), that the rule as to our being governed by the oldest full bench decision has been repealed.
¶10While such well-established principles as "stare decisis” and "oldest unreversed full bench decisions of the Supreme Court” are now being held no longer binding, perhaps the Supreme Court might take a second look at another old and venerated principle, to wit, that the Supreme Court decisions take precedence over decisions of the Court of Appeals. If we can bury that principle in the same grave with "stare decisis” and "oldest unreversed full bench decision of the Supreme Court,” we can all make a fresh start and begin the contest between the Supreme Court and the Court of Appeals on equal terms. Happy day!
¶11The Court of Appeals in Baker v. State, 131 Ga. App. 48 (205 SE2d 79) held contrary to this dissent, but it is not shown whether there was an agreement by the defendant to use the money for a specified purpose or simply a known legal obligation to do so; hence, we cannot say that there is any conflict between Baker, supra, and this dissent. But if there is a conflict, Baker v. State should be overruled.
¶12To illustrate the ridiculous position this statute would place a builder in, suppose his contract is to build a pool for $10,000, and at the end he finds himself owing $7,500 for labor and $7,500 for material, a total of $15,000, or $5,000 more than the owner pays to him. Because he made an error in judgment in placing his bid at too low a figure, is he to be prosecuted and placed in jail? Suppose he pays out the entire $10,000 to the laborers and *197materialmen, but he still lacks $5,000 of making full payment? The statute (Code § 26-1808) would nail him to the wall because when he uses the money as his own (conversion), and makes his own election as to how much he will pay on the debt for material and how much he will pay on the debt for labor, then this would certainly fit that language in the statute which provides "... knowingly converts the funds or property to his own use ...” So long as he exercises the right to determine how much he will pay Peter and how much he will pay Paul, he has converted it to his own use, and thereafter pays it out as his own money and as he decides to pay it, and to whom and in what amounts he decides to pay it.
¶13Suppose the bank pays its teller $750 for one month’s work, and the teller owes $750 in back rent, $750 in back grocery bills, and $750 to a friend who loaned it to him so he could go to see part of the World Series baseball games. He cannot pay all of them — they are all "known legal obligations” (provided he confided in his employer as to his situation) and the poor fellow would have to go to jail because he did not use the $750 to pay the total of $2,250 that were known legal obligations.
¶14I repeat that the owner of the pool had but to require an affidavit before they paid one red cent to the builder, which affidavit stated that all labor and material had been paid for. Then the owner would be scot-free regardless of whether the affidavit was true or false. The owner had a perfect remedy under Code Ann. § 62-2001 (2), and they should not be allowed to prosecute defendant because the owner would not use his legal remedy.
¶15I am authorized to state that Chief Judge Bell, Presiding Judge Pannell, and Judge Quillian concur in this dissent.