Davis v. State, 25043.

• Decision Date: 08 April 1936
• Docket Number: No. 25043.,25043.
• Citation: 53 Ga.App. 325,185 S.E. 400
• Parties: DAVIS. v. STATE.
• Court: Georgia Court of Appeals

53 Ga.App. 325

185 S.E. 400

DAVIS.

v.STATE.

No. 25043.

Court of Appeals of Georgia,

Division No. 1.

April 8, 1936.

Rehearing Denied May 1, 1936.

Syllabus by the Court.

1. The evidence amply supports a finding by a jury that the defendant sold crops upon which there was a lien for rent and advances, before the payment of the rent and advances, without the consent of and with intent to defraud the landlord, and that the landlord thereby sustained loss.

2. A sentence by the court that the defendant pay a fine of $50 including all costs of prosecution and that the defendant do work in the state prison farm for eight months, and "it is further ordered by the court, that upon payment of said fine and, furthermore, upon the payment by the defendant of $70 to D. R. Freeman, the prosecutor in this case, as part compensation, for the amount due by said defendant, to said Freeman, on the landlord's lien for supplies, and upon performance of these two conditions, by the defendant, it is expressly ordered that the sentence to the State prison farm, imposed herein, be served outside the confines of said prison farm, so long as the defendant shall not violate any of the penal laws of this State, to be judged of by this court on information received or evidence submitted in open court which shall satisfy the court that the terms of this probation sentence have been violated by the defendant, and until otherwise ordered by the court, " is a valid and legal sentence and is not violative of article 1, section 1, paragraph 21, of the Constitution of this state (Code 1933, § 2 121), providing, "There shall be no imprisonment for debt."

Error from City Court of Athens; Henry C. Tuck, Judge.

G. W. Davis was convicted of a violation of Code 1933, § 61-9903, and he brings error.

Affirmed.

Rupert A. Brown, of Athens, for plaintiff in error.

Carlisle Cobb, Sol., and Stephen C. Upson, Sol., both of Athens, for the State.

GUERRY, Judge.

1. G. W. Davis, the plaintiff in error, was tried and convicted, upon an accusation charging him with a violation of Code 1933, § 61-9903. That section reads as follows: "Any person who shall sell or otherwise dispose of crops upon which there is a lien for rent and advances, before the payment of the rent and ad-varices, without the consent of, and with intent to defraud, the lienor or assignee of the lien, and loss shall thereby be sustained by the lienor or assignee of the lien, shall be guilty of a misdemeanor." The accusation set forth, "that * * * G. W. Davis * * * then and there having contracted with D. R. Freeman which agreement, or contract, created the relation of landlord and tenant, for the rental of certain land and that tinder said agreement advanced supplies and money to the amount of $143 * * * and thereafter, after such advancements had been made to said G. W. Davis, before said tenant Davis had settled with said landlord and without the knowledge or consent of said landlord, sold three bales of said crop of cotton raised on said rented land, to the loss of said Freeman of $94.07, said sale being made with the intent to defraud said landlord. * * * " To convict the defendant upon this accusation drawn under the section already quoted, that is, to make the defendant's sale a violation of the provisions of that section, three essential facts must appear: (1) That the sale, made before the rent or advances were paid, was without the consent of the landlord; (2) that it was made with the intent to defraud the landlord; and (3) that loss was thereby sustained by the landlord. Unless all three of these things are shown, the defendant's conviction is unauthorized. White v. State, 24 Ga.App. 74, 100 S.E. 39; Wright v. State, 9 Ga.App. 442, 71 S.E. 500; Reece v. State, 5 Ga.App. 663, 63 S.E. 670; Thompson v. State, 12 Ga.App. 201, 76 S.E. 1072; Morrison v. State, 111 Ga. 642, 36 S.E. 902; Bell v. State, 14 Ga. App. 425, 81 S.E. 253; Farmer v. State, 18 Ga.App. 307, 89 S.E. 382.

The main argument of counsel for the defendant is that the evidence failed to disclose any facts, from which could legitimately be inferred an intent on the part of the defendant to defraud the landlord by the sale. Upon this question it might be well to state a few facts disclosed by the evidence, taken most strongly for the state. The defendant owed to D. R. Freeman an amount equal to one-fourth of the products raised on the farm as rent and $138 for supplies and money furnished by Freeman for the purpose of making a crop. He raised three bales of cotton. On or about October 25th, Freeman instructed the defendant to bring his cotton to his store and that he would give him ten cents per pound for it. On the 28th of October, defendant sold the three bales of cotton to Moss Bonded Warehouses for less than 10 cents per pound. The defendant had a check for $30.27 made payable to Freeman for payment of the rent and the remainder paid to him in cash. The defendant's wife turned the check for $30.27 over to Freeman. The defendant at that time made promises to come to see Freeman and settle for the remainder, which he failed to do. Freeman foreclosed a landlord's lien, which was levied upon the defendant's corn and feedstuffs, upon which there was realized to Freeman, after the payment of costs, $1.

The intent with which an act is committed is not often capable of direct proof. It has always been held to be a question for the jury to be drawn from the circumstances of the transaction under investigation. Here a flagrant violation of Code 1933, § 61-9903, is shown. The defendant well knew, at the time he disposed of the cotton, that Freeman had not given his consent to its sale, and that he had not paid to Freeman the amount of the advances made to him for the purpose of making his crop. It might also be said, from the evidence, that the defendant well knew that this was the only means he had of meeting this obligation. Counsel very strenuously contends that the fact that he had a check for $30.17, the amount of the rent, made payable to...