Coffee v. State
| Decision Date | 05 September 1963 |
| Docket Number | No. 22114,22114 |
| Citation | 133 S.E.2d 590,219 Ga. 328 |
| Parties | A. T. COFFEE v. The STATE. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. An indictment under which the defendant is charged with buying hogs at cash sale and making away with and disposing of said hogs before having paid therefor charges an offense under Ga.L. of 1959, p. 143 (Code Ann. § 5-9914).
2. The statute under consideration (Ga.L. of 1959, p. 143; Code Ann. § 5-9914) is not subject to the constitutional objections advanced by the plaintiff in error.
3. The statute under consideration (Ga.L. of 1959, p. 143; Code Ann. § 5-9914) does not provide that the acts prohibited should be done knowingly or with intent to defraud, so the indictment which is in the terms of the statute is sufficient though it does not allege a specific intent on the part of the defendant to defraud or that the defendant knew at the time of the purchase and disposition of the hogs that they had not been paid for or that credit had not been extended.
4. Where the indictment charges that the defendant bought and disposed of the hogs in Sumter County, a special demurrer on the ground that it was not alleged in what county the hogs were disposed of or made away with is without merit.
5. The remaining special grounds are without merit.
6. The evidence is wholly insufficient to support the conviction because it fails to show any act or conduct on the part of the defendant that would support the charge that his actions in the premises were done with the intent to defraud the Sumter Livestock Association and the court erred in not granting a new trial on the general grounds.
Will Ed Smith, Eastman, for plaintiff in error.
Stephen Pace, Jr., Sol. Gen., Warren Fortson, Americus, Eugene Cook, Atty. Gen., G. Hughel Harrison, Asst. Atty. Gen., LeRoy C. Hobbs, Atlanta, for defendant in error.
A. T. Coffee was indicted by the Sumter County grand jury for the offense of failing to pay for agricultural products in that he, being engaged in his own account and for others in the business of buying livestock and products sold by planters and commissioned merchants, did buy from Sumter Livestock Association, Inc. on cash sale 199 hogs for a specified price, said sale being a cash sale and the said Coffee did make away with and dispose of said hogs before having paid therefor. All the acts were charged as having been done in Sumter County. General and special demurrers to the indictment were overruled. Waiving a jury trial the defendant was tried before the judge who after hearing the evidence found him guilty and sentenced him to a term of not more or less than two years, subject to his serving his sentence on probation upon compliance with specified terms. Coffee's motion for a new trial on the general grounds having been overruled, he brings the case here for review, assigning error on the rulings on his demurrers to the indictment and denying him a new trial.
This court has sole jurisdiction to review this case because the state under which the indictment is framed is challenged by the demurrers as being violative of specified provisions of the State Constitution.
1. It is first contended that the indictment charges an offense under the Act of 1941 (Ga.L.1941, p. 337) which in substance provided: 'Any person engaged, either on his own account or for others, in the business of buying * * * cattle, hogs * * * sold by planters and commission merchants on cash sale, who shall buy such articles on sale from a planter or commission merchant for cash, and shall fail or refuse to pay for, and shall make way with or dispose of the same before he shall have paid therefor shall be imprisoned in the penitentiary for not less than one year, nor more than five years.' But this Act was repealed by the Act of 1959 (Ga.L.1959, p. 143; Code Ann. § 5-9914) which in substance provides: 'Any person, either on his own account or for others, who shall buy * * * cattle, hogs * * * or other products or chattels * * * or shall make way with or dispose of the same before he shall have paid therefor unless credit shall be expressly extended therefor, shall be guilty of a felony and upon conviction thereof, shall be imprisoned in the penitentiary for not less than one year nor more than five years.'
The defendant under the indictment is charged with buying the hogs at cash sale and making away with and disposing of said hogs before having paid therefor. This court in Plapinger v. State, 217 Ga. 11, 120 S.E.2d 609, held that the Act of 1959 creates in the alternative two offenses, the first where the purchaser fails or refuses to pay for products sold, and the second where the purchaser makes away with or disposes of the products before they have been paid for unless credit has been expressly extended for the products. It was there held that a conviction under the second portion of the Act of 1959--making away with or disposing of products before paying for them--did not violate the constitutional provision (Code Ann. § 2-121) prohibiting imprisonment for debt. It was pointed out in the opinion that the defendant in that case was not charged with a failure to pay for the products but with making away with or disposing of the products before paying for them. It was there said (p. 13 of 217 Ga., p. 611 of 120 S.E.2d): 'Our concern is with the act prohibited by the second portion of the statute, the offense for which the defendants were indicted--making way with or disposing of the products before paying for them.'
The request to overrule Plapinger v. State, supra, is denied.
We are of the opinion that the indictment charges an offense under the Act of 1959.
2. The demurrers challenge the constitutionality of the Act of 1959 (Ga.L.1959, p. 143) in that the Act violates:
(a) Art. I, Sec. I, Par. II of the State Constitution (Code Ann. § 2-102) which provides 'Protection to person and property is the paramount duty of government, and shall be impartial and complete' in that 'said Act arbitrarily classifies and unjustly discriminates against those classes of citizens who, as agents for others and so represent themselves to be, purchase property and make away with or dispose of the same, for the benefit of their principals, in good faith believing that the property has been paid for by the principal, or that credit has been extended to such principal; that said Act thus by its terms arbitrarily condemns as felons this class of citizens who are without fault and have no intention to harm or defraud the sellers of such property or anyone else; that the classification of citizens as felons who in good faith dispose of property purchased is arbitrary, unjust, and discriminatory, and is not impartial protection to the person.'
(b) Art. I, Sec. I, Par. III of the State Constitution (Code Ann. § 2-103) which provides 'No person shall be deprived of life, liberty, or property, except by due process of law' in that 'said Act condemns as a felon an agent who purchases property for his principal and disposes of the same believing that the principal has paid therefor; that said Act makes criminal a disposition of the property purchased unless credit has been expressly extended therefor, irrespective of the knowledge of whether the property has been paid for or whether credit has been extended; that said Act deprives a defendant of his liberty without liability, without fault, and without knowledge.'
(c) Art. I, Sec. I, Par. XXI of the State Constitution (Code Ann. § 2-121) which provides 'There shall be no imprisonment for debt' in that 'said Act provides for imprisonment for the bare disposition of property by an agent who acts in good faith believing that the property purchased and disposed of by him as agent has either been paid for by his principal or his principal has been extended credit; that the disposition of a particular kind of property, to wit, that not paid for, is an act declared to be criminal; that the debt for the purchase price is an essential element of the offense; that the bare failure to pay, accompanied by a disposition of the property, whether in good faith, accidental, intentional or beyond the control of the defendant constitutes imprisonment for debt.'
We are of the opinion that the statute is not subject...
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