Diamond v. State, 24868.

• Decision Date: 26 November 1935
• Docket Number: No. 24868.,24868.
• Parties: DIAMOND. v. STATE.
• Court: Georgia Court of Appeals

52 Ga.App. 184

182 S.E. 813

DIAMOND.

v.STATE.

No. 24868.

Court of Appeals of Georgia,

Division No. 1

Nov. 26, 1935.

Syllabus by the Court.

1. "The essential requisites in the offense of cheating and swindling by false representations are: (a) That the representations were made; (1b) that they were knowingly and designedly false; (c) that they were made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (f) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with his property. It is incumbent upon the State to prove all of these elements of the offense; and if any one is lacking in the proof, the offense is not made out." Goddard v. State, 2 Ga. App. 154, 58 S.E. 304.

2. A representation by one that he has title to a certain automobile, "made for the purpose of inducing another to purchase it, if false within the knowledge of him who makes the representation, is within the statute (Code 1933, § 26-7401 et seq.) against cheating and swindling." Holton v. State, 109 Ga. 127 (2), 34 S.E. 358; James v. State, 43 Ga.App. 324, 158 S.E. 644.

3. Applying the facts proved to the above legal requirements, the verdict in this case was authorized by the evidence.

4. The judge of the city court did not err in overruling the defendant's motion for a continuance.

5. The judge of the superior court did not err in overruling the certiorari and denying a new trial.

Error from Superior Court, Fulton County; Edgar E. Pomeroy, Judge.

E. N. Diamond was convicted of cheating and swindling, and he brings error.

Affirmed.

E. E. Andrews, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., John S. McClelland, Sol. and J. Walter Le Craw, all of Atlanta, for the State.

MacINTYRE, Judge.

Defendant Eddie N. Diamond was convicted of cheating and swindling in the city court of Atlanta. The petition for certiorari was duly sanctioned and on the hearing of the certiorari it was overruled and a new trial denied. The evidence in part was to the effect "that he, Austin _NAbbott, operated a used car business in the city of Atlanta at 278 Peachtree Street--that he bought and sold used cars--that in response to an 'ad' Eddie Diamond called and made an appointment to show him a car that Diamond wished to sell, that he went to Diamond's home on Sunday, March 4, 1934, and agreed with Diamond on a price of $325.00 for the car. * * * That on Monday, March 5, 1934, Diamond appeared at his (Abbott's) place of business, parked the car in front and came into Abbott's store, they then and there closed the trade on said car." The defendant exhibited to Abbott a bill of sale dated February 24, 1934, made by Fernandez to the defendant, which recited that the motor number of the car was 43365 (when in truth and in fact the motor number of said car was M-21409) and backed up this bill of sale with a license certificate from the Georgia state capitol showing the motor number 43365, when the motor number ought to have been stated as M-21409, representing the same as title papers on the car that the defendant was delivering to Abbott; also, at the same time defendant executed to Abbott a bill of sale to the car showing themotor number 43365 when in.truth the motor number was M-21409. "That, depending on these papers, and representations of Diamond's, he paid him $325.00 in cash. That among the papers exhibited by Diamond was a license transfer card issued with the license on the car. That the license number or tag on the car corresponded with the license number on the 'license transfer card' issued by the State and said card contained the same description of the car, including motor numbers, serial numbers, etc. as was contained in the title papers exhibited by Diamond and as was contained in the Bill of Sale then and there executed by Diamond to Abbott. That except to check the license numbers against the papers, he made no other examination of the...