Starling v. State

• Court: Georgia Court of Appeals
• Writing for the Court: RUSSELL
• Citation: Starling v. State, 5 Ga.App. 171, 62 S. E. 993 (Ga. App. 1908)
• Decision Date: 10 November 1908
• Docket Number: (No. 1,381.)
• Parties: STARLING. v. STATE.

62 S.E. 993

5 Ga.App. 171

STARLING.

v.STATE.

(No. 1, 381.)

Court of Appeals of Georgia.

Nov. 10, 1908.

1. Criminal Law (§§ 1091, 1092, 1088, 1059^*) —Bill of Exceptions — Entitling — Certificate — Sufficiency — Matters to be Shown by—Sentence—Exceptions—Sufficiency.

The motion to dismiss the writ of error is wholly without merit.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2772; Dec. Dig. §§ 1091, 1092, 1088, 1059.*]

2. Criminal Law (§ 400*)—Evidence—Best and Secondary.

Parol evidence of the contents of a written contract is inadmissible where it plainly appears that the writing itself is accessible.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 879; Dec. Dig. § 400.*]

3. Contracts (§ 253*)—Abrogation—Mutual Consent.

A written contract cannot be abrogated by one of the parties without the assent of the other.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. § 1146; Dec. Dig. § 253.*]

4. Master and Servant (§ 67*)—Fraudulent Contracts for Services—Criminal Prosecutions.

The contract mentioned in the labor contract act of 1903 (Acts 1903, p. 90) must be definite and unambiguous as to the time when the laborer's term of service is to begin and end. A contract in which it is stipulated that the employé is to "work a month" with the employer, but without any agreement as to when the month is to begin or end, is too vague and indefinite to be the basis of a criminal prosecution, for the reason that the time may not have been reached for the contract to begin, and the employe may still have the right to repay the advances obtained by him.

[Ed. Note.—For other cases, see Master and Servant, Dec. Dig. § 67.*]

(Syllabus by the Court.)

Error from City Court of Leesburg; H. L. Long, Judge.

Dolphus Starling was convicted of procuring money on a contract to perform services with intent to defraud in violation of Act Aug. 15, 1903 (Acts 1903, p. 90), and he brings error. Reversed.

Howell B. Simmons, for plaintiff in error.

W. G. Martin, Sol., for the State.

RUSSELL, J. A motion is made to dismiss this writ of error. This motion is based upon four grounds, as follows: "(1) Because said writ of error is not entitled in the cause or court (2) Because the certificate to the bill of exceptions of the trial judge does not specify as material to a clear understanding of the errors complained of the whole or any part of the record of said case in the trial court. (3) Because there is nothing in the assignment of error or bill of exceptions to show that the trial court ever passed sentence upon the defendant, reference being merely made to a 'verdict of guilty and judgment, ' and it does not disclose the nature of this judgment. (4) Because the assignments of error are too general to entitle them to the consideration of this court, in that none of them specify wherein the error consists."

An inspection of the bill of exceptions shows that it is sufficiently entitled in the cause, because it states that the trial had (of which it proceeds to give a history) was that of the State v. Dolphus Starling. It is not usual, nor is it ordinarily necessary, to otherwise entitle a bill of exceptions than to state in beginning the bill of exceptions the names of the parties to the cause. The certificate to this bill of exceptions is in the usual form prescribed by the Code. In the bill of exceptions in a criminal case reference is immaterial to the sentence, and it is not necessary that it should appear that the defendant had been sentenced where no error is assigned upon the sentence. An exception to the judgment overruling the motion for new trial is sufficient which assigns error upon that judgment. Upon every ground presented the motion to dismiss the writ of error is without merit.

Starling was convicted of a violation of the labor contract act of 1903 (Acts 1903, p. 90). Under the evidence the defendant procured money from the prosecutor upon a contract to work a month with him. The exact language of the prosecutor is as follows: "The last week in April I made a contract with Adolphus Starling to work a month with me, and I would pay him $12 per month in rations, and I advanced him at the time $3 and the supplies charged in the accusation." This is the only evidence as to the contents of the contract contained in the record. This contract was too indefinite to authorize a conviction under the act of 1903. When was the month's work to be done? Was it to be immediate, beginning the last week in April, or was it to commence on the first Monday in May. or upon the 1st day of May, or was it to be in the fall of the year in gathering the crops? Was it to be performed on a farm, in a manufactory, at a sawmill, or around a turpentine still, or was Adolphus Starling to be a mere domestic servant? The evidence does not disclose. Furthermore, it appears from the evidence upon the cross-examination of the prosecutor that there was already a contract in writing between the defendant and the prosecutor, which the prosecutor says he set aside; and it appears that the defendant hadbeen working for the prosecutor about 18 months at the time he left. In view of the fact that a contract must be set aside (just as it is made) by the consent, either express or implied, of both parties thereto, it cannot be established that the written contract was set aside by the mere statement of the prosecutor that "I set aside the first contract." There is no evidence that the defendant consented to the...