Sims v. State, (No. 19664.)

• Decision Date: 11 June 1929
• Docket Number: (No. 19664.)
• Citation: 148 S.E. 769,40 Ga.App. 10
• Parties: SIMS. v. STATE.
• Court: Georgia Court of Appeals

40 Ga.App. 10

148 S.E. 769

SIMS.

v.STATE.

(No. 19664.)

Court of Appeals of Georgia, Division No. 1.

June 11, 1929.

Rehearing Denied June 27, 1929.

(Syllabus by the Court.)

Error from Superior Court, Pulton County; E. E. Pomeroy, Judge.

E. S. Sims was convicted of procuring money by counterfeit check, and he brings error. Affirmed.

Louis H. Foster, of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., J. W. Le Craw, and John H. Hudson, all of Atlanta, for the State.

LUKE, J. In Sims v. State, 37 Ga. App. 819, 142 S. E. 464, the conviction was set aside because the trial judge erred in denying a motion in arrest of judgment, based upon the failure of the indictment to allege an intentto defraud. Omitting its formal parts, the indictment in the present case, based upon the same transaction and drawn under the same section of the Penal Code of 1910, to wit, section 249, charges E. S. Sims with a felony, "for that said accused, in the County of Fulton and State of Georgia, on the 7th day of April, 1927, * * * did designedly, by color of the following counterfeit check and writing, to wit: Anniston National Bank 64—3, Anniston, Ala., 4/7/1927. Pay to the order of A. M. Sims & Co. $123.80, one hundred twenty-three & 80/100 dollars. J. S. Jamerson—same being made in the fictitious name of J. S. Jamerson, obtain of and from the Atlanta & Lowry National Bank, a corporation, one hundred and twenty-three dollars & 80/100 cents in money, the property of said bank, with intent to defraud said bank, " etc.

The following appears from the record: The defendant, who was engaged in the business of selling automobile tires in the city of Atlanta, obtained the "O. K." of the check in question by J. S. Kennedy, vice president of the Altanta & Lowry National Bank, by representing to him that he knew J. S. Jamerson personally, that Jamerson was in the tire business in Anniston, Ala., and was a customer of his, and that said check was taken in a business transaction. After the vice president of the bank had approved the check by writing his initials, "J. S. K., " in the corner thereof, the bank paid the defendant the money on the check. A teller from the Anniston National Bank testified that he had held that position for eleven years; that he had opportunity to study handwriting, especially signatures; that the check in question was presented to his bank and protested; that he searched the records in his bank for an account in the name "J. S. Jamerson" and found none; that he tried to find such a person in Anniston, but failed to do so; that he would say that the name, "J. S. Jamerson, " and the indorsement, "E. S. Sims, " on the check, were written by the same person; that, while he could not say that the person who wrote the body of the check signed it, he would say that the signature, "J. S. Jamerson, " is practically the same as "E. S. Sims"; and the witness believed the same person wrote the name of the payee, "A. M. Sims & Co., " and the name, "E. S. Sims, " indorser, on the check —that this was his opinion, but that he could not swear it. L. P. Whitfield testified that he had studied handwriting since 1912, and represented the American Bankers' Association, and that in his opinion the man who wrote the check indorsed it. Ernest Canton testified that he worked for the defendant in his tire business on the corner of Decatur and Bell streets, but that he did not know anything about a Mr. Jamerson's buying tires there. Miss Mary Sims testified that she was the defendant's sister, and that they had a tire business on Decatur street; that she re called that a man from Anniston, Ala., who said his name was Jamerson, bought tires at their place of business twice and gave checks for them; that she was not present when the check for $123.80 was given, and had not been actively engaged in the business for some time prior thereto. P. C. Chastain, who was in the employ of Sims, remembered that some one bought a load of secondhand tires from them somewhere about the 8th of April, 1927. The defendant stated, in substance, that he was in the wholesale tire business, and had been doing considerable business with the Atlanta & Lowry National Bank; that he twice sold tires to Mr. Jamerson on previous occasions and Jamerson's checks were good; that, when he received check for $123.80 from the same man, he took it to the bank, told Mr. J. S. Kennedy, the vice president of the bank, that he had previously had dealings with Jamerson and his check was all right, and that, if it was not all right, he (the defendant) would take care of it; that he got the money on the check; that when he (defendant) was arrested, he told Mr. Kennedy that he had no money then, but that he would take up the check the next day; and that he leased his business to a Mr. Chastain, and that during defendant's absence the landlord raided the place and took "all the books and everything." Miss Mary Sims, recalled for the defendant, testified that she and her brother had an account at the Atlanta & Lowry National Bank in the name "A. M. Sims & Co., " and that a Mr. Head, who was present at a former trial of the case, was not used as a witness at that time. In part, Mr. J. S. Kennedy of the Atlanta & Lowry National Bank, testified: "I have been in the banking business about thirty-three years. As teller I had occasion to some extent to study and observe handwriting. I was teller about ten years. Necessarily, in handling checks in the bank, I have studied particularly signatures of persons, writings and indorsements, the making of notes and checks and negotiable papers. Looking at this check, I would say that the name of the payee, A. M. Sims & Company, is unquestionably the same as the indorsement on there, A. M. Sims & Company and E. S. Sims. The...