Ryan v. State

• Decision Date: 12 April 1898
• Citation: 30 S.E. 678,104 Ga. 78
• Parties: RYAN v. STATE.
• Court: Georgia Supreme Court

30 S.E. 678

104 Ga. 78

RYAN v. STATE.

Supreme Court of Georgia

April 12, 1898

Syllabus by the Court.

1. While ignorance of the law cannot be pleaded as a defense in actions for damages, or as an excuse for crime, yet knowledge of the law for all intents and purposes will not be imputed to every person.

2. Where a prosecutor in a pending warrant or indictment knowingly, and with intent to defraud and cheat, falsely pretends to the wife of the accused that, as prosecutor, he has the power to compromise the crime therein alleged against her husband, and thereby deceives her, and by means of this false pretense, and a promise to settle the prosecution obtains money from her, and there is a breach of the promise such prosecutor is guilty of being a common cheat and swindler, under section 670 of the Penal Code.

Error from criminal court of Atlanta; J. D. Berry, Judge.

D. W. Ryan was convicted of being a common cheat and swindler, and brings error. Affirmed.

C. W. Flake, for plaintiff in error.

Jas. F. O'Neill, for the State.

FISH J.

An accusation in the city court of Atlanta, charging D. W. Ryan with being a common cheat and swindler, was as follows:

"State of Georgia, County of Fulton, City of Atlanta. I, Emma L. Mallory, in the name and behalf of the citizens of Georgia charge and accuse D. W. Ryan, of the county and state aforesaid, with the offense of misdemeanor, for that the said D. W. Ryan, in the county and state aforesaid, on the ___ day of August, 1897, did commit the offense of being a common cheat and swindler, in this: That on the 14th day of August, 1897, Joseph Mallory, husband of affiant, being imprisoned in Fulton county jail under a warrant or indictment charging him with burglary, and the said D. W. Ryan being prosecutor in said case, he, the said D. W. Ryan, stated to affiant that he was prosecutor in said case, and as such prosecutor he could and would have him, the said Joseph Mallory, released and discharged from said charge and imprisonment if she, the said Emma L. Mallory, would pay to him the sum of fifty dollars; that affiant, relying on said statement of the said Ryan, and believing that he could and would release her said husband as he agreed, paid to him, the said Ryan, the said fifty dollars, after which the said Joseph Mallory was, in Fulton superior court, convicted on said charge of the offense of larceny from the house, and sentenced to six months' labor on the public works of said county, where he is now serving out his said sentence; that in making said statement to affiant the said Ryan knew the same to be false, and knew that he could not release the said Joseph Mallory as agreed, and he made said statement to affiant with intent to defraud and cheat her, and did cheat and defraud her, out of the sum of fifty dollars, contrary to the laws of said state, the peace, good order, and dignity thereof. Emma L. Mallory, Prosecutor.

"December Term, 1897, Criminal Court of Atlanta. J. F. O'Neill, Solicitor."

The accused demurred generally to the accusation, which demurrer was overruled. There was a verdict of guilty, and the accused moved for a new trial on the grounds that the verdict was contrary to law and evidence, "that the court erred in not quashing the indictment on demurrer," and "that the court erred in not charging, upon the request of counsel, that the prosecutrix was chargeable with notice of the law that a felony could not be compounded." A new trial was denied, and to this ruling exception is taken.

1, 2. If Ryan, the accused, knowingly, and with intent to defraud and cheat the prosecutrix, falsely pretended to her that he as the prosecutor in the warrant or indictment against her husband, had the power to compromise the crime therein alleged against him, and thereby deceived her, and by means of this false pretense, and a promise to settle the prosecution against her husband, obtained $50 from her, and there was a breach of such promise, then the accused is guilty of the offense of cheating and swindling, under section 670 of the Penal Code, which reads as follows: "Any person using any deceitful means or artful practice, other than those which are mentioned in this Code, by which an individual, or the public, is defrauded and cheated, shall be punished as for a misdemeanor." This section is a statutory extension of the common law of cheats, and is designed to make penal the cheating and swindling by false pretenses as well as by false tokens. The vital question made in the present case is, did the accused make a false pretense to the prosecutrix, by which she was deceived and defrauded? If she actually knew, or if, under the law, she was conclusively presumed to know, that the accused did not have the power to settle the prosecution against her husband, then she was not deceived by the representation of the accused that he could do so. One cannot be deceived by a representation made, which he knows to be false. The prosecutrix had no actual knowledge that the accused could not compromise the offense charged against her husband. She testified that she believed and acted upon the representations of the accused, and paid him $50 to "bring her husband out." This testimony shows, therefore, that she was actually deceived by the false pretense. Was she deceived in a legal sense? In other words, can it be said that a knowledge of the law was to be imputed to her, and therefore that it was to be conclusively presumed that she knew that the accused could not compound a felony against her husband? Such an implication, in our opinion, would be a misapplication of the maxim, "Ignorantia legis neminem excusat," relied upon by counsel for plaintiff in error. While it is true that the law will not permit the excuse of ignorance of the law to be pleaded for the purpose of exempting persons from damages for torts or for a breach of contract, or from punishment for crimes committed by them, yet knowledge of the law for all intents and purposes will not be imputed to every person. Brock v. Weiss, 44 N. J. Law, 241. In the case of Reg. v. Mayor, etc., of Tewksbury, L. R. 3 Q. B. 629, where the question was whether the mere knowledge, on the part of the electors of the borough of Tewksbury who voted for B. for town councilor, that he was mayor and returning officer of such borough, amounted to knowledge that he was disqualified for election, thereby causing their votes to be thrown away, etc., Blackburn, J., delivering the opinion, said: "Every elector in the borough...