Scott v. State

Citation185 S.E. 131,53 Ga.App. 61
Decision Date14 January 1936
Docket NumberNo. 25210.,25210.
PartiesSCOTT. v. STATE.
CourtUnited States Court of Appeals (Georgia)

Rehearing DeniedMarch 14, 1936.

Syllabus by the Court.

1. An indictment which alleges that the defendant conspired with others to defraud and cheat a named corporation, by falsely representing that another person was injured by the agents of such corporation, and thereby did cheat and defraud said corporation out of the sum of $150, states the offense of cheating and swindling under Penal Code 1910, § 719, Code 1933, § 26-7410, and is not demurrable upon the ground that the facts set out constitute the crime of barratry, and that as such it is defective in failing to allege the "frequent exciting and stirring suits and quarrels between individuals." Penal Code 1910, § 330, Code 1933, § 26-4701.

2. While, in such an indictment, it is necessary to allege the ownership of the moneys obtained, yet if, from the allegations of the indictment as a whole, it is clearly inferable to whom the money belonged, the absence of an express allegation to that effect is no reason for quashing the indictment.

3. A Solicitor General related to stockholders in a corporation which owned the stock of another corporation alleged to have been cheated and defrauded was not disqualified to appear before the grand jury to obtain such indictment, or to prosecute the case before a jury; it not appearing that in doing so he was actuated by personal interest in the matter.

4. Where the defendant was tried on February 14, 1935, and was convicted on February 22, 1935, and a motion for new trial wasfiled upon the following day, and a hearing thereon was set for April 23, 1935, "or when reached for hearing, " and on the day of hearing, August 20, 1935, the defendant filed a brief of evidence, which admittedly was not made from the stenographic report of the trial of the defendant, but was made from extracts of the stenographic report of the trial of a codefendant, and objection was made by the state on the ground that the brief was incomplete and incorrect, on which issue evidence was introduced before the judge, who found that it was not correct, and certified that because of the lapse of time since the trial he was unable to point out wherein it was incorrect, this court will not reverse the action of the judge in refusing to approve the brief of evidence and in dismissing the motion for new trial.

Error from Superior Court, Fulton County; C. W. Worrill, Judge.

Thomas E. Scott was convicted of cheating and swindling, and he brings error.

Affirmed.

J. K. Jordan, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. Walter LeCraw, and E. A. Stephens, all of Atlanta, for the State.

GUERRY, Judge.

Thomas E. Scott was indicted on five counts. Each count charged him with the commission of a distinct misdemeanor. All were of the same species. The first count charged him with an attempt in conspiracy with Irma Sutton and Sam Worthy to cheat and defraud the Georgia Power Company by falsely representing to said company that Irma Sutton was physically injured while alighting from one of its street cars. The second count charged him with conspiring with Grady Meaders and Sam Worthy to cheat and defraud Johnson-Fluker Company by the defendant's false representation to said company, made in a suit filed in the city court of Atlanta, that Grady Meaders was struck by a truck operated by the company, whereby $150 was fraudulently obtained from the company because of such misrepresentations. The third count charged him with conspiring with T. E. Rainey and Sam Worthy whereby $300 was obtained by defendant's false representation to said Georgia Power Company that T. E. Rainey, while a passenger on one of its street cars, was injured while alighting therefrom. The fourth count charged him with conspiring with Norman De Krasner, whereby $150 was obtained from the Georgia Power Company by defendant's false representation to the company that John Jaggers, while a passenger on a street car of the Georgia Power Company, was injured while alighting therefrom. The fifth count charged him with conspiring with Edna Wilhoite, A. W. Wilhoite, and Sam Worthy, whereby $600 was obtained from S. H. Kress & Co. by defendant's false representation that Edna Wilhoite was injured while a customer in its store by tripping over an electric cord which was stretched slightly above the floor. The jury returned a verdict of guilty upon the fourth count, and not guilty on the first, second, third, and fifth.

Before pleading to the indictment, defendant filed a demurrer as follows: "1. Because said indictment and every count thereof charges no offense against the laws of Georgia. 2. Because said indictment is drawn under section 719 of the Criminal Code of Georgia [Penal Code] denouncing fraud by deceitful means or artful practices other than those mentioned in said Code whereas said Code by section 330 expressly mentions and penalizes the offense of barratry; and because said indictment is insufficient to charge barratry because the necessary ingredient of frequently stirring suits and quarrels is not averred. 3. He demurs to counts 2, 3, 4, and 5 of said indictment because ownership of the monies therein alleged is not set forth; and because in the absence of such averments it does not appear that the several corporations therein named were in fact defrauded." This demurrer was overruled, and Scott excepted.

In purging the jury, and before putting them upon the defendant, as to whether there were in the panel any stockholders in the corporations alleged to have been defrauded, including the Georgia Power Company, one juror replied that he was not a stockholder in the Georgia Power Company, but he did own stock in the Commonwealth & Southern Corporation, which owned all of the stock of the Georgia Power Company. The solicitor thereupon stated to the court that this did not disqualify the juror; that he himself held stock in the Commonwealth & Southern Corporation. Upon this statement counsel for defendant moved to quash the indictment on the ground that the solicitor was disqualified from institutingand advising with the grand jury in returning it. The solicitor later qualified his statement to the effect that he owned stock in the Commonwealth & Southern Corporation by saying that he bought stock in the Commonwealth & Southern Corporation and gave it to his three children, and that he merely held it for them. This motion was likewise overruled, to which exceptions are taken in this court.

The judge refused to approve the defendant's brief of evidence and dismissed his motion for new trial, and, to this action, exception is taken.

1. The defendant's demurrer that the indictment does not state a crime under the laws of this state, which is substantially the same point raised in the further contention that the facts recited in the indictment are not covered by the terms of section 719 of the Penal Code of 1910, Code 1933, § 26-7410, making penal any deceitful means or artful practice, "other than those which are mentioned in this Code [Part XII of this Title], " by which any person is defrauded or cheated, but because of the quoted portion of that section, are covered by Penal Code 1910, § 330, Code 1933, § 26-4701, punishing the offense of barratry, and that since the indictment does not allege the "frequently exciting and stirring suits and quarrels, " it should therefore be quashed, is, to us, clearly without merit. Section 719 of the Penal Code of 1910, Code 1933, § 26-7410, is as follows: "Any person using any deceitful means or artful practice, other than those which are mentioned in this Code [Part XII of this Title], by which an individual, or a firm, or a corporation, or the public is defrauded and cheated, shall be punished as for a misdemeanor." Penal Code 1910, § 330, Code 1933, § 26-4701, provides: "Common barratry is the offense of frequently exciting and stirring suits and quarrels between individuals, either at law or otherwise. Any person who shall be found and adjudged a common barrator, vexing others with unjust and vexatious suits, shall be guilty of a misdemeanor and any attorney who shall violate the provision of this section shall also be disqualified from practicing his profession." Our Legislature has at various times provided against deceitful means or artful practices. It is provided by section 703 of the Penal Code of 1910, Code 1933, § 26-7401, that any person who shall by false representation as to his wealth, respectability, etc., obtain a credit and there by defraud another of any money or other valuable thing or shall cause or procure any other person to report falsely of his honesty, respectability, wealth, etc., and thereby obtain credit and shall thereby get into possession of goods or other valuable thing, he shall be deemed a cheat and swindler. By section 718 (a) of Park's Pen. Code, Code 1933, § 52-9903, the defrauding of hotels and boarding houses is made punishable. By Penal Code 1910, § 704, Code 1933, § 26-7402, cheating at any game, or in or by bearing a share or part in the stakes, or in or by betting on the sides or hands of such as do or shall play, whereby he obtains or acquires to him, or to any other, any money or other valuable thing, he shall be deemed a cheat. Penal Code 1910, § 705, Code 1933, § 26-7403, declares bakers and others selling under assize to be a cheat. Penal Code 1910, § 706, Code 1933, § 112-9901, provides that any person who shall buy or sell knowingly by false weights or measures shall be deemed a common cheat. Various other acts, such as forestalling, regrating, and engrossing (Penal Code 1910, § 707, Code 1933, § 26-7404), counterfeiting brands or marks (Penal Code 1910, § 708, Code 1933, § 106-9907), putting dirt and rubbish in cotton, rice, etc. (Penal Code 1910, § 709, Code 1933, § 26-7405), falsely personating another (Penal Code 1910, § 710, Code 1933, § 26-7406), and others, are treated...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT