Holton v. State

• Decision Date: 27 October 1899
• Citation: 34 S.E. 358,109 Ga. 127
• Parties: HOLTON v. STATE.
• Court: Georgia Supreme Court

34 S.E. 358

109 Ga. 127

HOLTON v. STATE.

Supreme Court of Georgia

October 27, 1899

Syllabus by the Court.

1. False representations acted on by another, in consequence of which he was cheated and defrauded, must, to be the basis of a prosecution for cheating and swindling, relate either to the present or to the past. A promise relating to the future cannot be the basis of a prosecution for this offense. But where there is both a false pretense and a promise, which acted together on the mind of the person defrauded and induced him to part with a thing of value, and he would not have done so on the promise without the pretense, such a pretense, if false, is sufficient to support a conviction for being a common cheat and swindler.

2. A representation by one that he has title to a named lot of land, 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 against cheating and swindling.

3. If by deceitful means or artful practices, one is induced to give to another his negotiable note, promising to pay a given sum at a named date, whether as a matter of fact the maker is or is not insolvent, he is, nevertheless, defrauded and cheated.

4. There was no error in the charges nor refusals to charge, nor in the rulings of the court, of which complaint is made. There was ample evidence to support the verdict, which was not contrary to law.

Error from city court of Waycross; J. S. Williams, Judge.

R. R Holton was convicted of cheating and swindling, and he brings error. Affirmed.

G. J. Holton & Son and J. Walter Bennett, for plaintiff in error.

J. L. Crawley and Leon A. Wilson, for the State.

LITTLE J.

1. An accusation was preferred in the city court of Waycross against the plaintiff in error, charging him with the offense of cheating and swindling. On the trial of the case, the evidence of the state tended to establish the following facts: That Holton approached M. S. and J. L. Lee, and asked them to purchase a certain lot of land in Ware county, being a wild lot, and represented to them that it was owned by one Connally, and that he had a power of attorney from Connally to sell the land. That he represented the title of Connally to be a good and genuine title, superior to any other claim of title to the lot; Holton promising at the same time to defend the title if any adverse claim should be made against it. That the purchasers relied upon the representations that the title was good, and also upon the promise of Holton that he would defend the title to the same. Under these representations and this promise, M. S. and J. L. Lee purchased the land for $400, and gave their promissory notes for the same, one for $150, all of said notes being due in the future and at different dates. During the negotiations, M. S. Lee told Holton that he had heard that the Southern Pine Company had a claim on the lot. Holton stated in reply to Lee that the title he had was superior to any claim of title by the pine company or any one else. Soon after they entered into possession of the land the Southern Pine Company applied for an injunction restraining them from cutting the timber. Lee called on Holton, who lived in Appling county, to defend the title. He referred Lee to a firm of lawyers in Waycross, whom Lee consulted, and was advised that the chain of title which he received from Holton was forged. Lee interposed no defense. The injunction was granted. In the meantime, Holton had traded off one of the promissory notes of Lee, and received in exchange therefor his own personal obligation. This note was sued, and a judgment obtained thereon against M. S. and J. L. Lee. That neither of them had ever paid any money on the judgment, and it was probable that they were insolvent. At the time of the trade for the land, Lee called Holton's attention to the fact that he did not have the original plat and grant, to which Holton replied that it was at his home, and that Lee could get it any time he came for it. On the trial of the case it was admitted that all of the deeds received by Lee from Holton were forged, with the exception of that made to Lee. There was much other evidence, to which, for the purpose of this opinion, it is not necessary to make reference. The defendant contended that, if the title was forged, he had no knowledge of it, and that when the application for injunction was filed he proposed to the brothers Lee that, if they would convey the title to him, he would defend it. He denied making any promise, and otherwise controverted many of the statements made by witnesses for the state. The jury returned a verdict finding the defendant guilty. He made a motion for a new trial, which was overruled, and he excepted.

Besides the general grounds that the verdict was contrary to law and evidence, certain rulings and charges of the trial judge were alleged to be error in the motion for new trial. These, however, can be disposed of by the determination of certain contentions urged in the brief of counsel for plaintiff in error, which are: First, if the purchasers bought the land on the faith of a promise made by Holton in the nature of a false representation that he would defend the title, a prosecution for this offense would lie; second, that whether the title which Holton had was the true title or not was a matter of opinion, and was so recognized by the purchasers when they took Holton's promise to stand between them and all damage; third, it was not shown either that Holton got a thing of value or that the brothers Lee suffered any loss.

The statute for the violation of which the plaintiff in error was charged declares that any person using any deceitful means or artful practices, other than those which are mentioned in the Code, by which an individual or the public is defrauded and cheated, shall be punished as for a misdemeanor. It is a sound proposition of law that false representations, to be the basis of a prosecution for cheating and swindling, must relate either to the past or to the present. Miller v. State, 99 Ga. 207, 25 S.E. 169. It therefore follows that any promise or statement as to what may occur in the future, however false, will not serve as a basis for such a prosecution, because a promise is not a pretense. Ryan v. State, 45 Ga. 128. But it by no means follows that a prosecution may not be maintained when, in connection with a promise, a false representation has been made. On this subject, Mr. Bishop, in the second volume of his work on Criminal Law (section 424), says: "It would be difficult to find in actual life any case wherein a man parted with his property on a mere representation of fact, whether true or false, without an accompanying promise. If, therefore, we look at the promise simply as a nullity, it does not impair a simultaneous false pretense, considered as a foundation for an indictment." And, citing a number of cases, he says, in section 427, that "the conclusion to which the foregoing views lead us accords with what the

English judges have held, that where the blended pretense and promise, acting together on the mind of the defrauded person were the inducements to part with his goods, and he would not have done it by reason of the pretense alone without the promise, the case falls still within the statute." This point has, however, been exactly decided in the case of...