Thomas v. State

• Decision Date: 08 October 1892
• Citation: 16 S.E. 94,90 Ga. 437
• Parties: THOMAS . v. STATE.
• Court: Georgia Supreme Court

16 S.E. 94

90 Ga. 437

THOMAS .

v.STATE.

Supreme Court of Georgia.

Oct. 8, 1892.

Criminal Law—Review on Appeal — Overruling Demurrer—Arguments of Counsel — Jurors—Taking Notes—Instructions—Cheating and Swindling—What Constitutes.

1. As criminal cases are by the act of September 7, 1891, subjected, in respect to the time for signing and certifying the bill of exceptions, to the practice relating to bills of exceptions in cases of injunction, the overruling of a demurrer to a bill of indictment, unless excepted to pendente lite, cannot be reviewed on a bill of exceptions bringing the case to this court, signed and certified within 20 days after final judgment overruling a motion for a new trial, but not within 20 days after the decision on the demurrer.

2. Counsel, in discussing the credibility of a witness to the jury, may refer to the witness as a person of bad character, where there is evidence to that effect.

3. A juror may take notes of amounts testified to by a witness. Tift v. Town, 63 Ga. 237; Lilly v. Griffin, 71 Ga. 535. There is no law to prohibit a juror from taking notes of any of the evidence.

4. It is not error for the court to enumerate acts constituting the essentials of the offense, and to instruct the jury that, if they find these acts are established, they would be bound to find the defendant guilty. Kitchens v. State, 41 Ga. 217; Pinnaman v. State, 58 Ga. 336; Hill v. State, 63 Ga. 578; Wilson v. State, 67 Ga. 660, 661; Kinnebrew v. State, 5 S. E. Rep. 56, 80 Ga. 236.

5. The offense of cheating and swindling may be committed by false representation of a past or existing fact, although a promise be also a part of the inducement to the person defrauded to part with his property. A verdict of guilty was not contrary to law and the evidence, there being evidence sufficient to sustain the allegations of the accusation to the effect that the defendant induced the prosecutor to exchange to a confederate of the defendant a certain pair of mules, a wagon, and a set of harness, worth $200, for two horses and a mare of greatly inferior value, upon the faith of the defendant's representation that he had already sold the horses to a certain other person for $275, to be paid as soon as they were delivered, and out of which money the prosecutor, if the trade should be made, would get $200, the defendant to take for himself $75 and the mare, this representation being untrue, and made to the prosecutor for the purpose of cheating and swindling him.

(Syllabus by the Court)

Error from criminal court of Atlanta; T. P. Westmoreland, Judge.

Albert Thomas was convicted of cheating and swindling. A motion for a new trial was overruled, and he brings error. Affirmed.

R. J. Jordan, for plaintiff in error.

Lewis W. Thomas, for the State.

Simmons, J. The accusation was preferred by George W. Miller, and charged the defendant, Albert Thomas, with the offense of misdemeanor, in " using deceitful means and artful practices, by which said George W. Miller was defrauded and cheated of a certain pair of mules, one wagon, and a double set of harness, of the value of two hundred dollars; for that * * * on the day and date aforesaid, * * * in the county of Fulton aforesaid, the said Albert Thomas approached the said George W. Miller for the purpose of purchasing the property aforesaid, arid which the said George W. Miller wished to sell. The said Albert Thomas said to George W. Miller that he knew a lady who had two gray horses, which were worth $650, and one gray mare, and she wanted to exchange them for a pair of mules, which she wanted on her farm out in the country, and that be had a pair of gray horses already sold to Walker for $275, who wanted them for carriage horses; the said Albert Thomas at the same time pointing in the direction of the well-known livery and sale stables of Hill & Walker on Hunter street, Atlanta, Ga.; and the said Albert Thomas said to the said George W. Miller that, if the said Miller would just let him work the trade, and not say anything, he, the said Thomas, would work it...