Williams v. State
| Decision Date | 30 August 1913 |
| Docket Number | 4,389. |
| Citation | 79 S.E. 207,13 Ga.App. 338 |
| Parties | WILLIAMS v. STATE. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
Where to relieve an accusation from the bar of the statute of limitations, a fact constituting an exception to the statute is alleged, the burden is on the state to prove the exception.
(a) Where, from an accusation charging a misdemeanor, alleged to have been committed by defrauding a certain corporation, it appeared that the offense was committed more than two years before the date of the accusation, and it was alleged that the offense was unknown to the corporation until within the two years preceding the date of the accusation, the burden was upon the state to show that the offense was unknown until within that period to any of the officers or agents of the corporation whose knowledge would be imputable to it.
Error from City Court of Elberton; Geo. C. Grogan, Judge.
Lewis Williams was convicted of swindling, and brings error. Reversed.
Z. B Rogers, of Elberton, for plaintiff in error.
Boozer Payne, Sol., of Elberton, for the State.
Lewis Williams was accused in the city court of Elberton of the offense of cheating and swindling, and was convicted. The accusation charged that he represented to M. E. Maxwell & Co., a corporation, that he owned a certain mule, free of incumbrance, when, in truth and in fact, the mule did not belong to him, but was held by S.S. Brewer under a certain bill of sale. It was further alleged in the accusation that the crime was committed on March 16, 1909, but that the offense was unknown to the said M. E. Maxwell & Co. until April 1, 1911. The accusation was dated November 7, 1911. The defendant moved for a new trial upon the grounds (1) that the verdict was contrary to the evidence and without evidence to support it; (2) that it was contrary to law; (3) that the court erred in admitting in evidence a "retainer of title and mortgage note," executed by the defendant to S.S. Brewer & Settle, which instrument retained title and ownership in said S.S. Brewer & Settle to one black horse mule, about six years old, weighing about 1,000 pounds and known as the "Hill mule"; (4) that the court erred in admitting in evidence a mortgage given by the defendant to M. E. Maxwell & Co., which was not recorded in Wilkes county although it was not disputed that the defendant was living in Wilkes county at the time of the execution of the mortgage and ever since; (5) because the court erred in giving in charge to the jury section 719 of the Penal Code.
The determination of the question as to whether the verdict is contrary to the evidence and contrary to law depends upon a consideration of the assignments of error relating to the admissibility of the testimony to which the movant objected and for this reason we shall consider these grounds together. It is necessary to pass upon these assignments of error in view of the fact that we feel constrained to grant another trial, but we shall deal first with the assignment of error which requires us to give the case that direction.
The state failed to prove that the alleged offense was not barred by the statute of limitations. In the accusation it is alleged that the false representations which the defendant was charged with making were in fact made on March 16, 1909. The accusation was not preferred until November 7, 1911. To prevent the bar of the statute of limitations, and to bring the case within one of the statutory exceptions, the accusation further alleged that the offense set out was unknown by said Maxwell & Co. until April 1, 1911.
Where an indictment charges that the offense alleged to have been committed beyond the period of the statute of limitations was unknown, the burden is on the state to prove the exception. Flint v. State, 12 Ga.App. 169, 76 S.E. 1032; Cohen v. State, 2 Ga.App. 689, 59 S.E. 4. In Mangham v. State, 11 Ga.App. 427-438, 75 S.E. 512, this court was dealing with a presentment, a proceeding in which there is no prosecutor; and, moreover, the point was not controlling upon the decision. The proof showed that M. E. Maxwell & Co. is a corporation. M.E. Maxwell swore that he did not know of the offense until the spring of 1911, and Sisk testified to the same effect. But the evidence did not disclose that either was an officer of the corporation through whom knowledge would be imputed to the corporation, or was an officer of the corporation at all. The proof does not show that there were not other officers of the corporation, or that the officers did not know, for a period of more than two years before the filing of the accusation, that the alleged offense had been committed. Presumably the corporation had officers. If the commission of the offense was known to them, their knowledge must be imputed to the corporation, the exception is not proved, and the offense is barred.
Unless the prosecutor was the only person interested in the offense, proof that it was unknown to him would not suffice to relieve the bar of the statute of limitations and bring the case within the exception, and so, where it affirmatively appears that a corporation is the party defrauded and the party interested in the prosecution, the state does not carry the burden resting upon it, unless it is affirmatively made to appear that none of those officers whose knowledge may be imputed to the corporation knew of the commission of the offense for a period of time exceeding two years prior to the commencement of the prosecution. In other words, it must appear that the prosecution was begun within less than two years from the time that knowledge of the commission of the offense was brought home to any single officer of the corporation whose personal knowledge, due to his relation, could be imputed to the corporation. The state having failed to bring the case within the exceptions set out in section 30 of the Penal Code, the verdict was contrary to law.
The court erred in admitting in evidence the note and mortgage retaining title in S.S. Brewer & Settle. The accusation charged that the defendant's statement, that the mule was unincumbered, which was made with the intent to deceive and defraud M. E. Maxwell & Co., was not true because "the aforesaid mule did not then and there belong to Lewis Williams, but was held by one S.S. Brewer under a certain bill of sale." This was a material allegation, and even if the note with retainer of title had been admitted without objection, there would be a fatal variance between the allegata and probata. Even in a civil case proof that the title...
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