Turnipseed v. State

• Citation: 53 Ga.App. 194,185 S.E. 403
• Decision Date: 31 March 1936
• Docket Number: No. 24971.,24971.
• Parties: TURNIPSEED. v. state.
• Court: United States Court of Appeals (Georgia)

53 Ga.App. 194

185 S.E. 403

TURNIPSEED.

v.state.

No. 24971.

Court of Appeals of Georgia,

Division No. 1.

March 31, 1936.

Syllabus by the Court.

1. The court did not err in overruling the demurrers to each of the three counts of the indictment.

2. The court did not commit reversible error in overruling the special grounds of the motion for new trial.

3. There being evidence to support the verdict of guilty on each of the three counts of the indictment, the court properly overruled the general grounds of the motion for new trial.

4. The motion in arrest of judgment was not meritorious, and the court properly overruled it.

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

Robert F. Turnipseed was convicted of cheating and swindling, and he brings error.

Affirmed.

Louis H. Foster, James R. Venable, Frank A. Bowers, and Robert F. Turnipseed, all of Atlanta, for plaintiff in error.

John A. Boykin, Sol. Gen., and J. Walter Le Craw, both of Atlanta, for the State.

MacINTYRE, Judge.

Robert F. Turnipseed was tried and convicted on each of the three counts of an indictment charging him with cheating and swindling. The questions for determination are whether or not the court erred, (1), in overruling special demurrers to each count of the indictment; or (2) in overruling the motion in arrest of judgment; or (3) in overruling the motion for new trial as amended.

The first count charges that on July 19, 1934, in Fulton county, Ga., the defendant committed the offense of "cheating and swindling" for that he "did conspire with Sam Worthy and Q. T. Worthy to cheat, wrong and defraud Tripod Paint Company out of the sum of $125 in money; and in pursuance of said conspiracy accused and the two persons above named did represent to said Tripod Paint Company that E. M. Brooks was struck on his right hip and back by a truck of said company and knocked into the curbstone." The count continues as follows: "The representations above quoted that a person named E. M. Brooks was struck by a truck of the Tripod Paint Company on his right hip and back and knocked into the curbstone were untrue and were known to the said Robert F. Turnipseed to be untrue; said representations were made to the Tripod Paint Company for the purpose and with the intent to cheat, wrong and defraud said company out of the sum of $125 in money, and--by virtue of said wilful misrepresentations--accused did cheat, wrong and defraud said company out of the sum of $62 in money. * * *"

We shall separately consider each paragraph of the special demurrer to count 1 of the indictment. Paragraph 1 avers that "the count does not set forth the name of the person, employees, agents or officials of said Tripod Paint Co. to whom said alleged false representations were made." The rule laid down in Wharton's Criminal Procedure, vol. 1, p. 845, § 633, is that "where the allegation is that a corporation was defrauded, or attempted to be defrauded, it is sufficient to set out the name of such corporation, without designating anyparticular individual, officer or agent of such corporation to whom the representations or false pretenses were made." In State v. Turley, 142 Mo. 403, 44 S.W. 267, the court said: "It is not necessary in an indictment charging one with obtaining goods from a corporation by false and fraudulent representations, etc., to allege the representations were made to any officer or employee of the company, or believed by them. The indictment is sufficient if such allegations were made as would be necessary in an indictment for the same kind of an offense against a natural person." On page 410 of 142 Mo., on page 268 of 44 S.W., the court says: "No one would contend that if representations of the character of those which defendant is charged with making were made in writing, and addressed to a corporation, it would be necessary to allege that they were relied upon by some particular director or agent of the corporation; and the same rule applies when such statements and representations are verbal. The indictment sufficiently informed the defendant of the nature of the offense charged against him, and was in all respects, so far as we have been able to discover, free from objection." "An indictment for obtaining money by false pretense alleging that the false pretense was made to the Louisville & Nashville Railroad Company, a corporation, sufficiently alleges the person to whom the false pretense was made, since section 1, Code 1907, provides that the word, person, shall include a corporation as well as natural person." Bailey v. State, 159 Ala. 4, 48 So. 791, 17 Ann.Cas. 623. It might be observed here that our Code 1933, § 102-103, provides that: "Person includes a corporation." In the case of State v. Hulder, 78 Minn. 524, 81 N.W. 532, a person was convicted under an indictment charging that the defendant obtained money from a railway company by falsely representing that defendant had been injured while in the employ of said company. In that case the court followed the rule in the Turley case, supra. Another decision in line is People v. Goodhart, 248 Ill. 373, 94 N.E. 148. Counsel for plaintiff in error rely on the ruling made in the second headnote of the case of McLendon v. State, 16 Ga.App. 262, 85 S.E. 200, which is as follows: "An allegation in such an accusation that certain false and fraudulent representations were made 'to the firm of Rice & Phelps, a partnership composed of W. B. Rice and W. T. Phelps, ' as to the ownership of cer tain described property, etc., was not sufficiently definite, as the defendant was entitled to know the specific person or persons to whom the representations were made." We do not care to extend this ruling any farther, and the McLendon case is differentiated from the instant case in that in the one case the representations were alleged to have been made to a partnership, and in the other the person alleged to have been defrauded was a corporation. A corporation is a legal person. A partnership is not a legal person, and it has been held in the case of a partnership that to make the indictment good "it should have been charged that the representations were made to, and the money obtained from, the persons who composed that firm, although the allegation that they were copartners might have been proper to establish the agency of the one person with whom the transaction was had." Bates v. State, 124 Wis. 612, 620, 103 N.W. 251, 254, 4 Ann.Cas. 365. In the Bates Case it was said "a count in an information for obtaining money by false pretenses charging that the money was obtained from H. P. P. & Son is bad, in that it fails to specify any person from whom the money was obtained." It was also said that "the words 'H. P. Proctor & Son' mean nobody." "Person includes a corporation." Code 1933, § 102-103. Persons are either natural or artificial. The latter are called corporations. Code 1933, § 79-101. In the instant case the averment that the representations were made to the Tripod Paint Company was sufficient, for this was a representation to a person, although an artificial one. We hold that the indictment is not subject to paragraph one of the demurrer.

Paragraph 2 of the demurrer avers that count one "does not set forth the name of the truck, whether gasoline, steam, hand, or electrically propelled." The gist of the offense charged is the alleged fraudulent and false representation, and we are satisfied that the defendant was not entitled to the information sought to be elicited by this special demurrer. This demurrer is not good.

Paragraph 3 of the demurrer avers that "it is not alleged * * * by whom said vehicle was being operated, * * * whether by an agent, employee, or officer of the Tripod Paint Company." The information sought by the demurrer was not necessary to enable the defendant to makehis defense, or to fulfill any other requirement of good pleading, and we hold that the demurrer is not meritorious.

Paragraph 4 of the demurrer avers that "the count does not set forth what person, agent or official of the Tripod Paint Co. that the alleged false representations were made to, and what alleged false representations were made by this defendant to the Tripod Paint Co." It was not necessary for the indictment to allege to whom the false representations were made. See our discussion of paragraph 1 of the demurrer. The count sets out the false representations alleged to have been made, and there is no merit in the latter part of the demurrer.

Paragraph 5 of the demurrer avers that "it is not alleged that the Tripod Paint Co., its agents, employees or officials relied on the alleged false representations alleged to have been made by this defendant." The indictment alleges that the false representations were "untrue and were known to * * * Turnipseed to be untrue"; that they were made to the Tripod Paint Company "for the purpose and with the intent to cheat, wrong and defraud said company out of the sum of $125, " and that "by virtue of said wilful misrepresentations did * * * defraud said company out of * * * $62." We are satisfied that the indictment refutes the demurrer, and hold that the demurrer is without merit.

It is averred in paragraph 6 of the demurrer that "it is not alleged what false representations Sam Worthy made and to whom." The count alleges a conspiracy among the defendant Turnipseed and Sam Worthy and Q. T. Worthy, and further alleges that "in pursuance of said conspiracy" said three alleged conspirators "did represent to said Tripod Paint Company that E. M. Brooks was struck on his right hip and back by a truck of said company and knocked into the curbstone." This demurrer is without merit.

It is averred in paragraph 7 of the demurrer that "it is not alleged whether or not the alleged false representations made by the defendant were in parol or in writing." The case mainly relied on to support this contention is of Goddard v. State, 27 Ga.App. 226, 107 S.E. 888, where it was held that an accusation...