Morse v. State

• Decision Date: 07 June 1911
• Docket Number: (No. 3,355.)
• Citation: 71 S.E. 699,9 Ga.App. 424
• Parties: MORSE et al. v. STATE.
• Court: Georgia Court of Appeals

9 Ga.App. 424

71 S.E. 699

MORSE et al.

v.STATE.

(No. 3, 355.)

Court of Appeals of Georgia.

June 7, 1911.

(Syllabus by the Court.)

1. False Pretenses (§ 11^*)—Elements of Offenses—Obtaining Real Property.

While the particular statutes creating and denning the offense of cheating and swindling or obtaining property under false pretenses relate specially to personal property, or that character of property which is subject to larcenous asportation, the provisions of section 719 of the Penal Code of 1910, are broad enough to include real estate or any interest therein.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 15; Dec. Dig. § 11.*]

2. False Pretenses (§ 12*)—Elements of Offense—Obtaining Possession.

To constitute an offense under section 719 of the Penal Code of 1910, it is only necessary to show that the owner of property of value was induced by deceitful means and artful practices to part with the possession thereof, and was thereby cheated and defrauded.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 16; Dec. Dig. § 12.*]

3. False Pretenses (§ 49*)—Evidence—Sufficiency.

No error of law appears, and the evidence supports the verdict. There was no error in overruling the certiorari.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 62; Dec. Dig. § 49.*]

(Additional Syllabus by Editorial Staff.)

4. False Pretenses (§ 13*)—Elements of Offense—Validity of Contract.

That a contract obtained by defendants, accused of swindling and cheating, was defectively executed by the defrauded corporation, is immaterial, where the contract was one of the means adopted for getting possession of the property of the corporation through the fraudulent representations of accused.

[Ed. Note.—For other cases, see False Pretenses, Cent. Dig. § 17; Dec. Dig. § 13.*]

Error from Superior Court, Greene County; B. F. Walker, Judge.

A. Morse and others were convicted of cheating and swindling. To a judgment overruling certiorari to review the conviction, they bring error. Affirmed.

Geo. A. Merritt and Geo. Gordon, for plaintiffs in error.

Jos. E. Pottle, Sol. Gen., Jas. Davison, Sol., and Brown & Shipp, for the State.

HILL, C. J. Plaintiffs in error were convicted in the county court of Greene county on an indictment charging them with the offense of cheating and swindling. Their petition for certiorari was sanctioned by the judge of the superior court, and on the hearing of the certiorari the same was overruled. To the latter judgment they excepted.

The indictment (omitting formal parts) charges that the plaintiffs in error "did * * * falsely and fraudulently, and with intent to defraud Greensboro Co-operative Creamery Company, represent to said Greensboro.Co-operative Creamery Company, and to T. C. Crawford, president of said company, that they were stockholders of and largely interested financially in Rigbers Ice Cream Company, a corporation, that said Rigbers Ice Cream Company was capitalized at $20,000, all of which was fully paid in, and said Rigbers Ice Cream Company was worth the sum of $20,000, and did, on the faith of said representation, induce said Greensboro Co-operative Creamery Company, whereby the plant of said Greensboro Co-operative Creamery Company, including its property, was leased to said Rigbers Ice Cream Company for the term of three years beginning April

1, 1910, and was induced to turn over and deliver said plant and property to said Rigbers Ice Cream Company and to said F. H. Rigbers and A. Morse, representing said Rigbers Ice Cream Company; whereas, in truth and in fact, as the said F. H. Rigbers and the said A. Morse then and there well knew, said Rigbers Ice Cream Company was not then and there capitalized at $20,000, the capital stock of $20,000 was not paid in, and said Rigbers Ice Cream Company was not worth $20,000, or any other like large sum. On account of said false and fraudulent misrepresentation said Greensboro Co-operative Creamery Company sustained loss in the sum of $1,000."

A demurrer was filed to this indictment, on the ground that the property alleged to have been procured by the false pretenses set out in the indictment was real estate, was an interest in land, and was not within the purview of the penal statutes of this state defining the offense of cheating and swindling. It is urged with learning and ability that these statutes were intended to apply only to personal property and to protect the title of the owner thereof, and that they were never intended to apply to real estate or an interest therein, as this kind of property was not subject to larcenous asportation. In support of this view counsel cite the statute of 30 Geo. II, & 24, which seems to be the first statute defining the offense of obtaining property by false pretenses, and the decisions in State v. Eno, 131 Iowa, 619, 109 N. W. 119, and People v. Cummings, 114 Cal. 437, 46 Pac. 284, wherein this question is elaborately discussed, and the conclusion reached that statutes of this character do not include real property, how-ever general in terms, and were undoubtedly aimed and designed solely for the purpose of protecting personal property. It cannot be doubted that these statutes originated in certain defects in the application of the laws against larceny, and from a failure of justice which frequently arose from the subtle distinction between larceny and fraud. Although property might be obtained from the possession of the owner by the grossest character of fraud, it would not constitute larceny if in fact it was obtained by the consent of the owner; and it was to cure this defect that these laws, defining cheating and swindling or obtaining property by false pretenses, were enacted. It is also true that under the English decisions these statutes do not apply to real property, the reason being that this class of property could not be carried away and dissipated like chattels, and that, although the owner might be deprived of his landed estate by means of fraudulent practices and deceitful means, yet the property was bound to remain stationary and accessible to law, and the civil courts furnished ample protection; and it is also true that some of the American courts have followed this view of the law in the application of these particular statutes, and it may be that in this state the offense of cheating and swindling would not apply to one who by deceitful means and artful practices obtained title to the land of another, for the very simple reason that the land could not be taken away, and any contract of sale obtained by such illegal means could be set aside either in a court of law or equity. But we are not prepared to say that this principle would apply to a case of a lease, especially if that lease included, with the interest in the land, personal property. "A lease for a term of years is not a freehold estate, but a chattel." Field v. Howell, 6 Ga. 423; 8 Enc. Digest of Ga. Reports, 559. One who by deceitful means or fraudulent practices obtains from another a lease of property, and thereby possession of the property, especially where such lease includes personal property, may not only be in a position to deprive the owner of his use of the property for the term of the lease, but may utterly destroy its value to the owner.

Without extending further the discussion on this line (as we deem it unprofitable), we are clear that, under the broad language of the statute of this state under which this indictment was framed, it is not subject to a demurrer on...