Summers v. State

• Decision Date: 30 October 1940
• Docket Number: 28354.
• Citation: 11 S.E.2d 409,63 Ga.App. 445
• Parties: SUMMERS v. STATE.
• Court: Georgia Court of Appeals

11 S.E.2d 409

63 Ga.App. 445

SUMMERS v. STATE.

No. 28354.

Court of Appeals of Georgia, Division No. 1.

October 30, 1940

James W. Smith, of Albany, and Fort, Fort & Fort, of Americus for plaintiff in error.

Fred W. Lagerquist, Jr., Walter Jones, and Rosser Malone, all of Albany, and Carl E. Crow, Sol. Gen., of Camilla, for defendant in error.

MacINTYRE Judge.

O. T Summers was charged with cheating and swindling, for that he did "with intent to defraud one R. B. Saunders, by deceitful means and artful practices, falsely represent to R B. Saunders by and through the agent of R. B. Saunders, W. A. Fowler, that he the said accused had a contract with the government through the rehabilitation agent in Fort Gaines, Georgia, for 20 tons of shelled Spanish peanuts that the accused must deliver immediately, and that he the said accused under his contract with the government was receiving a price that would enable him to pay R. B Saunders $80 per ton for the quality of peanuts that Saunders owned, *** that said representations were false and fraudulent, knowingly so and made wilfully and for the purpose and with the intent to deceive and defraud said R. B. Saunders, and the said R. B. Saunders not knowing said representations were false and fraudulent but believing them to be true and relying upon them as true had his agent, W. A. Fowler, deliver to said O. T. Summers approximately 8200 pounds of Spanish peanuts in the shell from East Albany Warehouse, trade name of R. B. Saunders of the property of R. B. Saunders and of the value of $3300, thereby cheating and defrauding said R. B. Saunders out of the sum of $3300 of the value of $3300 to the injury, loss, and damage to R. B. Saunders of $3300 the truth and fact being that the said O. T. Summers had no such contract with the government and rehabilitation agent at Fort Gaines, Georgia, all of the representation being false and fraudulent and with the intent to deceive and cheat and defraud said R. B. Saunders and did cheat and defraud him in the manner and sense above set out."

The defendant's demurrers, general and special, were overruled. He excepted pendente lite. He filed a plea in abatement on the ground that "the indictment returned by the grand jury was not supported by any evidence adduced before the grand jury and for that reason the indictment was void." The solicitor filed a traverse to the plea and the issue thus formed was submitted to a jury who, by direction of the court, found in favor of the traverse. To this ruling the defendant excepted. At the trial of the case on its merits the defendant was convicted, and he excepts to the overruling of his motion for new trial as amended.

1. An indictment drawn under Code, § 26-7410, sets forth an offense thereunder as against demurrer where it shows that the owner of property of value was induced by deceitful means and artful practices to

part with the possession thereof, and was thereby defrauded and cheated. Davis v. State, 27 Ga.App. 195, 107 S.E. 883; Morse v. State, 9 Ga.App. 424(2), 71 S.E. 699. The essential elements of the offense of cheating and swindling are set forth in Phillips v. State, 40 Ga.App. 141, 142, 149 S.E. 157, and Diamond v. State, 52 Ga.App. 184, 182 S.E. 813, and where every essential ingredient of the offense charged is set forth with sufficient clearness to enable the defendant to prepare his defense and the jury clearly to understand the nature of the offense, and the indictment is exact enough to protect the defendant from a second jeopardy, the indictment is not demurrable. Williams v. State, 2 Ga.App. 629(2), 58 S.E. 1072; Hawkins v. State, 58 Ga.App. 386, 198 S.E. 551 and cit.; McGinty v. State, 59 Ga.App. 675, 677, 2 S.E.2d 134. The indictment was sufficient under this rule, and the court did not err in overruling the demurrers for any reason assigned.

2. The defendant contends that "an indictment must be based on some legal evidence, and an indictment of an offense which is made up of several distinct elements must be based on evidence supporting each of the necessary elements." The defendant contends in his brief that there was no legal evidence before the grand jury that the defendant Summers did not have such a contract as was referred to in the indictment, and hence a representation that he had such a contract was not proved to be untrue. That "there was absolutely no legal evidence to support this essential fact [that there was no such contract]. All of the witnesses who appeared before the grand jury testified on the trial of the plea in abatement that they did not know anything of their own knowledge whether or not Summers had such contract. One witness, W. A. Fowler, testified that others [including the agent referred to in the indictment] told him that Summers did not have any such contract. We think it is unnecessary to point out that hearsay evidence has no probative value; in other words, hearsay evidence amounts to no evidence. It is further established in this State that hearsay testimony alone can not establish a fact, and any verdict resting upon hearsay evidence alone can not stand."

In Washington v. State, 63 Ala. 189, it is said "The indictment in this case was found in November, 1879, and charged that the defendant, Alexander Washington, 'with intent to steal, broke into and entered the dwelling-house of Amanda Arnold.' Before pleading to the indictment, the defendant moved the court to quash it, or to strike it from the files, on the ground that there was no legal evidence before the grand jury implicating the defendant in the commission of the offense; and in support of this motion, he offered to prove by several of the grand jurors, and by Mrs. Amanda Arnold, the prosecutrix, who was the only witness examined before the grand jury, 'that her testimony before the grand jury was to the extent that her house had been broken into and entered, and certain goods stolen from it, but she testified to nothing tending to connect the defendant with the commission of said offense, except what had been told to her by other witnesses, for whom subpoenas were issued, but who were not examined as witnesses before said grand jury."' The motion was denied, and in the course of the opinion, Judge Stone, speaking for the court, said: "In refusing to entertain the motion to strike the indictment from the file and quash it, the City Court ruled in precise accordance with what was said by this court in Sparrenberger's Case [Sparrenberger v. State], 53 Ala. 481 (25 Am.Rep. 643). We there said, 'When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged.' In this case, a competent witness was sworn and examined before the grand jury. The precise point urged in argument is, that the grand jury found the bill on insufficient testimony, in this: that while there was proof that a burglary had been committed as charged, no legal evidence was given before that body, showing that the accused was the guilty offender. To allow such inquiry and testimony, would be not only to disregard what was said in Sparrenberger's Case, copied above, but would greatly retard and embarrass the administration of the...