Carey v. State

• Decision Date: 27 November 1900
• Citation: 37 S.E. 405,112 Ga. 226
• Parties: CAREY. v. STATE.
• Court: Georgia Supreme Court

112 Ga. 226

37 S.E. 405

CAREY.

v.STATE.

Supreme Court of Georgia.

Nov. 27, 1900.

FALSE PRETENSES—INDICTMENT—VARIANCE.

There was in the present case a fatal variance between the allegata and the probata, and consequently the verdict of guilty was unwarranted.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

W. C. Carey was convicted of obtaining money on false pretenses, and brings error. Reversed.

Henry Walker and Harper Hamilton, for plaintiff in error.

Moses Wright, Sol. Gen., for the State.

LUMPKIN, P. J. The plaintiff In error was in the trial court convicted upon the second count of an indictment charging him with obtaining from one Hardin, "a clerkfor Kay & Bro., who acted for them, " money and goods of value, by color of a counterfeit writing made "in the fictitious name of J. B. Reynolds, " with intent to defraud the said Kay & Bro. The writing set forth in the indictment was In the following words and figures: "Rome, Ga., Mch. 10, 1900. Reed, from First National Bank of Rome fifteen dollars. J. B. Reynolds. [2-cent revenue stamp.] Canceled by J. B. R., Mch. 10, 1900." On the trial the state introduced In evidence a writing upon the face of which was the following: "Rome, Ga., March 10, 1900. If this receipt is presented by any other than the drawer, it will require a 2-cent revenue stamp. Received from First National Bank of Rome, $15.00 (fifteen 00/100 dollars). J. B. Reynolds. Fletcher Smith, Pr. Rome, Ga." Affixed to the writing was a two-cent revenue stamp, canceled with the initials, "J. B. R., " and having written across it the date, "March 10, 1900." Upon the back of this paper appeared the name, "W. C. Carey." The only evidence introduced at the trial which tended to show that Kay & Bro. were defrauded of any money or goods was to the following effect: The accused presented to Hardin, their clerk, the above-mentioned paper, just as it appeared when Introduced in evidence, save that the same when so presented had no name on the back of it, and the revenue stamp had not then been affixed to it. The accused requested of Hardin an advance of goods and money thereon. Hardin positively refused to comply with this request, saying to the accused that the paper "was no good, —just a receipt." Thereupon the accused wrote his name across the back of the paper, affixed to it the revenue stamp, and canceled the same. He then told Hardin that the paper thus stamped and indorsed was the equivalent of a check, and...