Foss v. State
| Decision Date | 22 December 1914 |
| Docket Number | 6023. |
| Citation | 83 S.E. 880,15 Ga.App. 478 |
| Parties | FOSS v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Defects in an indictment afford no ground for a new trial. Exceptions which go merely to the form should be made by demurrer before trial. For matters affecting the real merits, the remedy after trial is by motion in arrest of judgment.
While the offense of cheating and swindling is not complete unless the representations are both deceiving and injurious, it is not necessary that the defendant himself be benefited by his fraud.
Where one is on trial for an attempt to commit the offense of cheating and swindling, and the charge of the court upon the subject of attempts is correct, in the absence of a timely written request for further instructions as to mere preparatory acts, the failure of the judge to so charge is not error.
Where an indictment alleged that representations were made to A and the proof showed that they were made directly to B., but in A.'s presence and hearing and for the purpose of having A. to act upon them, and that at the same time the one who made the representations handed to A. a fraudulent bill directly connected with the representations, and that A acting upon these representations, made in his presence and hearing, had B. to the bill, held, that this did not constitute a material variance between the allegations in the indictment and the proof.
Proof of presentation of the bill for payment was sufficient proof of demand for payment.
The court committed no error in sustaining the solicitor general's objection to allowing the witness to state the substance of a conversation between himself and the British consul.
Where an indictment for cheating and swindling, where it is alleged that "any amount of money paid by said captain in response to said demand was taken by the captain from any wages then due or to become due to said Anderson," and the proof showed that no money was actually paid by the captain, but that an attempt was made to get him to pay it, this variance was immaterial, when the state had abandoned its attempt to convict the accused of cheating and swindling and contended only for a verdict for an attempt to commit the said offense, and when the jury brought in a verdict for an attempt only.
The evidence authorized the verdict, and there was no error in the overruling of the motion for a new trial.
The other assignments of error are without merit.
Error from City Court of Savannah; Davis Freeman, Judge.
I. I. Foss was convicted of an attempt to defraud, and brings error. Affirmed.
Jos. M. Dreyer, of Savannah, for plaintiff in error.
W. C. Hartridge, Sol. Gen., of Savannah, for the State.
I. I. Foss, a merchant, was convicted of an attempt to defraud one Gustave Anderson, a member of the crew of a British ship in the harbor of Savannah. Anderson had been fined $10 by the recorder in the police court of Savannah; and Foss had, through an attorney, obtained Anderson's release from jail without the payment of the $10 fine, or any part thereof, except $1, which Foss paid for a certified copy of the charges against Anderson. After Anderson was released from the jail, Foss, according to the state's evidence, told Anderson that he (Foss) had paid the $10 fine out of his own pocket, and presented a bill to Anderson for $15 "for clothing," stating to Anderson that the fine which he had paid was included in the bill; whereupon Anderson approved the bill. Several days afterward Foss presented this bill for $15 to F. A. Smith, the captain of the ship, for payment, and stated to Anderson, in the presence and hearing of Smith, that the fine which he had paid for Anderson was included in this bill. Whereupon, in the presence of Foss and Smith, Anderson "O.K.'d" the bill. The undisputed evidence further showed that no fine had been paid by Foss, and that Anderson had been released without the payment of any fine, and that if Captain Smith had paid this bill he would have taken the amount out of Anderson's wages. Foss introduced evidence to show that before getting Anderson out of jail, he (Foss) had told Anderson that it would be necessary to employ an attorney to get him out, and that Anderson had agreed to this. Foss denied ever telling Anderson, or any one else, that he had paid Anderson's fine. The undisputed evidence further showed that Foss had asked an attorney to see if he could get Anderson out of jail, and that the attorney saw the recorder and persuaded him to release Anderson without the payment of any fine, and that Foss, on the following day, paid to that attorney, or his representative, $10 for his services. Anderson and several other witnesses for the state testified that he had never authorized Foss to employ a lawyer, and that Foss never said anything about getting a lawyer, and that he (Anderson) told Foss to go to Capt. Smith and have him get him out.
1. The first and strongest contention of plaintiff in error in this case is that the verdict is contrary to law, for the reason that the accusation charges that:
The plaintiff in error, "by the use of deceitful means and artful practices, did cheat and defraud Gustave Anderson out of the sum of $12.35 in money, of the value of $12.35, to wit, by falsely and fraudulently to F. A. Smith that he had paid for the account and on behalf of one Gustave Anderson the sum of $10, and in money, to the authorities of the police court of the city of Savannah, to secure the release from custody of said Gustave Anderson, he, the said Gustave Anderson, having been fined said sum of $10 in the police court of the city of Savannah, and that he, the said Foss, desired the said money to reimburse himself; said Gustave Anderson being a steward on board the steamship 'Foxton Hall,' and said F. A. Smith being captain thereof, and any amount of money paid by said captain in response to said demand was taken by said captain from any wages then due, or to become due, to said Gustave Anderson, contrary to the laws," etc.
Counsel contends that this accusation is fatally defective in substance because it...
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