Daniel v. State

• Decision Date: 16 July 1940
• Docket Number: No. 28264.,28264.
• Citation: 10 S.E.2d. 80
• Parties: DANIEL. v. STATE.
• Court: Georgia Court of Appeals

10 S.E.2d. 80

DANIEL.

v.STATE.

No. 28264.

Court of Appeals of Georgia,

Division No. 1.

July 16, 1940.

Syllabus by the Court.

1. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested. However, a motion to quash does not question the competency or sufficiency of the evidence which induced the judgment, nor is. it a proper method of raising the question as to variance between allegation and proof, it being in the nature of a general demurrer to the accusation. MeCard v. State, 54 Ga.App. 339(1), 187 S.E. 850. The motion deals solely with the record and the verdict, and the evidence cannot be considered on such a motion.

2. A note, on the back of which appears: "This note is to bear interest at the rate of 7 per cent. Said note is given against my residence at 10 Candler Road--Brookhaven, Georgia. Lucille Daniel [maker of the note], " is sufficient to constitute a mortgage under Code, § 67-102.

3. "Where a debtor executed to two creditors separate mortgages to secure debts due to them respectively, and it appears that, in procuring the credit to secure which the last mortgage was executed, he represented to the mortgagee that the property mortgaged was unincumbered, such misrepresentation cannot be made under section 4587 of the code, [Code, § 26-7401], unless it be shown that, in consequence thereof, the second mortgagee has been in fact defrauded, and that in extending the credit upon the faith of such misrepresentation, he has sustained a loss. In such a case, the burden is upon the State, not only to establish the misrepresentation made and the credit given, but likewise, a loss; and where the evidence shows that the mortgaged property has neither been sold, nor appropriated to the extinguishment of the senior mortgage, there is no such evidence of a loss by the junior mortgagee as will sustain a conviction of the debtor; especially is this true, where the evidence shows that the mortgaged property exceeds in value the aggregate indebtedness represented in both the mortgages and It does not appear that the senior mortgage is being either claimed against the mortgagor, or enforced against the mortgaged property." McGee v. State, 97 Ga. 199(1, 2), 22 S.E. 589. See, also, Ruck* er v. State, 114 Ga. 13, 16, 39 S.E. 902.

4. In the instant case, under the rule of the McGee case, ft does not appear that the prosecutor has suffered any pecuniary loss. It does not appear that the property in question was valued or was put up for sale at a foreclosure sale; nor does it appear that the property was appropriated to the extinguishment of the prior loan deed, and there is no such evidence of a loss by the mortgagee as will sustain a conviction of the defendant for the crime of cheating and swindling.

BROYLES, C. J., dissenting.

Error from Superior Court, Fulton County; Walter C. Hendrix, Judge.

Lucille Daniel was convicted of cheating and swindling, and she brings error. Reversed.

J. Herbert Johnson and Clarence H. Calhoun, both of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter Le Craw, and Bond Almand, Sol., all of Atlanta, for defendant in error.

MacINTYRE, Judge.

The defendant, Lucille Daniel, was convicted of cheating and swindling in the Criminal Court of Fulton County before a judge sitting without a jury. Her petition for certiorari to the superior court was overruled, and she excepted.

It appears that the defendant borrowed $50 from Ida Zelien and $450 from Mrs. Bertha Zelien and represented to them at the time that her residence given as security in the following instrument was "free from all encumbrances or liens of every kind and character." The instrument was an ordinary promissory note for $500 payable to Mrs. Zelien 114 days after date. At the foot of the note was the following: "For full details see other side." On the reverse side of the note was the following: "This note is to bear interest at the rate of 7 per cent. Said note is given against my residence at 10 Candler Road--Brookhaven, Georgia. Lucille Daniel."

1. The defendant made a motion to quash the accusation upon the ground that there was a variance between the proof and the accusation and upon the further ground that the evidence did not support the accusation. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested, that is, for some defect appearing on the face of the record. Gilmore v. State, 118 Ga. 299 (1), 45 S.E. 226; Maddox Coffee Company v. McHan, 22 Ga.App. 198, 95 S.E. 736. However, a motion to quash does not question the competency or sufficiency of the evidence which induced the judgment, nor is it a proper method of raising the question as to variance between allegation and the proof, it being a demurrer to the accusation. The motion was properly overruled. Golden v. State, 45 Ga. App. 501 (lb), 165 S.E. 299; Sessions v. State, 3 Ga.App. 13(la) 59 S.E. 196; Owens v. State, 54 Ga.App. 417, 187 S. E. 890; Penn & Watson v. McGhee, 6 Ga.App. 631(5), 65 S.E. 686. The defendant also made a motion to quash on the ground that "the accusation does not set forth the nature of the incumbrance on the property." This ground of the motion was raised only in the defendant's brief and can not be considered by this court.

2. The defendant contends that the instrument was not sufficient to constitute a mortgage or security and that the money was lent on an unsecured negotiable instrument. Code, § 67-102, provides that "no particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect." Any language to show an intent to mortgage (creation of a lien) is sufficient. Horton v. Murden, 117 Ga. 72(2), 43 S.E. 786. As to the matter of descriptive averments of the land intended to be mortgaged, if the descriptive recitals are so definite as to render the tract capable of being located, the averments are sufficient. Sexton v. Burruss, 146 Ga. 685(1), 92 S.E. 217; Singleton v. Close, 130 Ga. 716(2), 61 S.E. 722; Arrendale v. Dockins, 166 Ga. 62, 66(2), 143 S.E. 570. And as to specification of the debt to secure which it is given, where the mortgage and the note are executed on one sheet of paper and the note is identified in the mortgage as "this note", it is sufficient. See Watson v. Fenn, 145 Ga. 220, 88 S.E. 819; Mason v. Parker, 101 Ga. 659, 28 S.E. 985. On the face of the note in the instant case, after reciting the amount, date, payee, maker, etc., there appears the following: "For full details see other side." On the back of the note the following appears: "This note is to bear interest at the rate of 7 per cent. Said note is given against my residence at 10 Candler Road--Brookhaven, Georgia, Lucille Daniel." We are of the opinion that the mortgage was legally sufficient to comply with the above-quoted Code section. The words "said note is given against my residence" is sufficient to show an intent to create a lien. The words "10 Candler Road-- Brookhaven, Georgia", are so definite as to render the tract capable of being located, and the specification of the debt to secure which it is given is unquestionably sufficient.

We are not unmindful that this court, in the cases of Bolton v. State, 43 Ga.App. 759, 159 S.E. 910, and Tribble v. State, 33 Ga.App. 370(2), 126 S.E. 272, has held to the contrary, however, the Supreme Court, in the case of McGee v. State, 97 Ga. 199(1, 2), 22 S.E. 589, has held that "Where a debtor executes to two creditors separate mortgages to secure debts due to them respectively, and it appears that in procuring the credit to secure which the last mortgage was executed he represented to the mortgagee that the property mortgaged was unincumbered, such misrepresentation cannot be made the basis of a prosecution for cheating and swindling, under section 4587 of the Code [Code of 1933, § 26-7401], unless it be shown that in consequence thereof the second mortgagee has been in fact defrauded, and that in extending the credit upon the faith of such misrepresentation he has sustained a loss. * * * In such a case the burden is upon the state, not only to establish the...