Hathcock v. State

• Citation: 13 S.E. 959,88 Ga. 91
• Parties: Hathcock v. State.
• Decision Date: 23 November 1891
• Court: Supreme Court of Georgia

13 S.E. 959

88 Ga. 91

Hathcock v. State.

Supreme Court of Georgia

November 23, 1891

Syllabus by the Court.

1. Representations, by a party applying for credit, that he was perfectly solvent, and responsible for his debts, and was good for his obligations, are representations of his respectability and wealth, and, if false, are within section 4587 of the Code, which declares that, "if any person by false representation of his own respectability, wealth, or mercantile correspondence and connections, shall obtain a credit, and thereby defraud any person or persons of any money, goods, chattels, or other valuable thing, *** such person so offending shall be deemed a cheat and swindler."

2. Where the trial is had at the same time on two counts in an accusation, a verdict of guilty on one count alone is an acquittal on the other; but such acquittal does not vitiate the conviction, although both counts may relate to the same transaction.

3. Where goods are obtained by false representations mixed with true ones, if the false are separable from the true, and are material, and had a material influence in effecting the fraud, they alone may be alleged in the indictment or accusation, and the conviction will be upheld although other representations, not false, constituted a material part of the inducement on which the prosecutor gave the credit, and parted with his goods.

4. Where the fruits of a criminal fraud amounted to more than $900, a fine of $1,000 is not an excessive or unusual punishment.

5. The sentence, being that the accused "pay a fine of one thousand dollars, and costs of this prosecution, or be confined in the common jail for twelve months," is in the alternative. When in the alternative, the imprisonment is a part of the punishment, and cannot exceed the limit of six months. Direction given to modify sentence as to imprisonment in jail in accordance with section 4705 of the Code.

6. An affidavit on which an accusation is founded in the city court may charge two misdemeanors of the same class as committed by the same person, and the accusation founded thereon may consist of two counts, each charging one of the offenses set forth in the affidavit; and the prosecutor will not be compelled to elect between these counts at the trial, where it appears from the evidence that both of them relate to the same transaction.

7. Where the affidavit sets out one of the offenses, and adds the facts concerning the other, introducing these facts with the phrase, "the deponent further charges and accuses the said W. M. Hathcock with misdemeanor in this," the verification of the affidavit is not confined to these terms of accusation, but extends also to the facts as set out in the subjoined statement as to the mode of committing the misdemeanor.

8. That the accused had unlimited credit with another house was not relevant upon the question of whether he had misrepresented his solvency to the prosecutor, and thereby defrauded him.

9. Promissory notes of the accused, executed after the misrepresentation complained of, in renewal of debts existing before, were admissible in evidence to show the amount of his liabilities at the time he represented himself as solvent.

10. Objection to evidence generally, with no statement of the grounds on which the objection was based at the time it was made, will not be considered.

11. Proof of good character will not hinder conviction if the guilt of the defendant is plainly proved to the satisfaction of the jury, and so to instruct the jury is not "gratuitous, unnecessary, argumentative, and hurtful to the defendant."

12. The verdict was warranted by the evidence.

Error from city court of Atlanta; Howard Van Epps, Judge.

Prosecution against W. M. Hathcock for making fraudulent representations as to his financial responsibility. Verdict of guilty, and judgment thereon. Defendant brings error. Affirmed.

Simmons J.

The accusation against Hathcock contained two counts. The first was that Hathcock was guilty of the offense of misdemeanor "in that said Hathcock, in Fulton county, on or about May 23, 1889, did, by false and fraudulent representations as to his own respectability, wealth, and commercial standing cheat and defraud A. P. Morgan out of certain merchandise to the value of $921.35, to-wit: The said W. M. Hathcock represented to said Morgan that he (Hathcock) was the owner of a certain tract of land in Campbell county, Georgia containing six hundred acres, and also was the sole owner of two certain mills, in his own right and title, and upon these representations induced Morgan to extend to him credit for a lot of corn, bran, oats, and hay to the said amount of $921.35, when in truth and in fact one of these mills did not belong to Hathcock, and he had no title to it, as he represented. Said Hathcock, by said false and fraudulent representations, induced said Morgan to part with his property as aforesaid, and thereby cheated and defrauded him out of the amount of $921.35; said Hathcock knowing at the time he made said representations that they were false, and were made for the purpose of cheating and defrauding said Morgan, as aforesaid, and did thereby cheat and defraud him." The second count (omitting the formal part) charged that Hathcock represented to Morgan that he was "perfectly solvent and responsible for his debts, and was good for his obligations, and thereby induced the said Morgan to part with certain merchandise to the value of nine hundred and twenty-one and 35-100 dollars, *** when in truth and fact the said Hathcock was then and there deeply insolvent, and he knew the same when he made the aforesaid false and fraudulent representations; and said false representations were made for the purpose of cheating and defrauding the said A. P. Morgan, and did thereby cheat and defraud him, as aforesaid. The said A. P. Morgan was induced to extend credit to the said Hathcock upon his false and fraudulent statements, believing at the time that they were true; but the said Hathcock, knowing that they were false and fraudulent, made the same for the purpose of cheating and defrauding, and thereby did cheat and defraud, as aforesaid, contrary to law," etc...