Wilson v. State

• Court: Georgia Court of Appeals
• Writing for the Court: TOWNSEND; MacINTYRE, P. J., and GARDNER
• Citation: Wilson v. State, 84 Ga.App. 703, 67 S.E.2d 164 (Ga. App. 1951)
• Decision Date: 04 October 1951
• Docket Number: No. 33764,No. 2,33764,2
• Parties: WILSON v. STATE

Page 164

67 S.E.2d 164

84 Ga.App. 703

WILSON v. STATE.

No. 33764.

Court of Appeals of Georgia, Division No. 2.

Oct. 4, 1951.

Syllabus by the Court.

1. Where, as here, the indictment contains all the essentials of the offense of cheating and swindling, it is not subject to demurrer on the ground that one other than the prosecutor, to whom the false representations were also made, suffered no loss.

2. The indictment in the instant case set out an offense under Code, § 26-7410 relating to other methods of cheating and swindling than those specially enumerated in Chapter 26-74 of the Code, and was not duplicitous.

3. In a prosecution for cheating and swindling growing out of alleged false representations which induced another to become liable as endorser on a certain note secured by a bill of sale, the false representations relating to the property described in the bill of sale, the documents were relevant and represented the best evidence of their contents, and were properly admitted in evidence.

4. Error in admitting, over objection, a certified copy of a mortgage fi. fa. and claim affidavit in a prosecution for cheating and swindling was rendered harmless by the defendant's admission that she did not in fact own the property in question.

5. Objection to the form of a sentence in a criminal case cannot be made a ground of a motion for a new trial.

6. It is essential to the legality of a conviction for cheating and swindling that the person alleged to have been defrauded shall have sustained some pecuniary loss. The evidence here showing that the prosecutor who paid the defendant's note to the bank received security therefor, and failing to show that such security was not sufficient to cover his loss, is insufficient to support a verdict of guilty.

(a) Fraud in the payment of a pre-existing debt cannot be made the foundation of a charge of cheating and swindling where such fraud does not deprive the prosecutor of any right, property, money or other thing of value.

Mrs. Ezra Wilson was tried and convicted in the City Court of Athens for the offense of cheating and swindling on an accusation sworn out by J. C. Stiles as follows:

'For the said Mrs. Ezra Wilson * * * did with force and arms then and there use deceitful means and artful practices whereby one J. C. Stiles was defrauded and cheated, in that the said Mrs. Ezra Wilson did on said date execute to the National Bank of Athens a promissory note for $800.00 due six months after date and bill of sale to secure same, and did induce the said J. C. Stiles to indorse such note on account of the express representations by said Mrs. Ezra Wilson then and there made that she was the owner of personal property described in said bill of sale, to-wit: One John Deere Tractor, Model B. Serial No. 68347 with one Disc Plow and one Disc Harrow, and one 16 Disc Harrow; one Combine, Allis Chalmers, size 60, Serial No. 61250. Said representations as to the ownership of the above described property were false for the reason that said property was at the time said bill of sale was executed, owned by James Wilson and Swayne Wilson, the two sons of Mrs. Ezra Wilson, and was not the property of Mrs. Ezra Wilson, and such fact was known to Mrs. Ezra Wilson at the time she made such false representations.

'And the said Mrs. Ezra Wilson did on said date secure from the National Bank of Athens the sum of $776.00, of which amount she paid J. C. Stiles the sum of $500.00 for past due rent, and the remainder of which sum, in the amount of $276.00, the said Mrs. Ezra Wilson did receive and retain;

'And the said Mrs. Ezra Wilson having failed to pay said note at its maturity, said The National Bank of Athens demanded said entire sum of $800.00, plus interest thereon from maturity at the rate of six per cent per annum, from J. C. Stiles as endorser, which amount said J. C. Stiles did pay on April 25, 1949, and on said date said note and bill of sale to secure same were transferred and assigned by The National Bank of Athens to J. C. Stiles;

'The said J. C. Stiles did not know or learn until on or after May 29, 1949, when he undertook to foreclose said bill of sale in the Superior Court of Oglethorpe County, Georgia, that the property described in said bill of sale to secure debt was not the property of said Mrs. Ezra Wilson, but was the property of her sons, James Wilson and Swayne Wilson, and until on or after said May 29, 1949, said offense was unknown, and until on or after said date J. C. Stiles had no knowledge that the expressed representations by Mrs. Ezra Wilson that she was the owner of the personal property described in said bill of sale, were false.

'The expressed representations made by defendant, Mrs. Ezra Wilson, as above set out, that she was the owner of personal property listed herein and described in said bill of sale to secure debt were false, and known by said defendant to be false; and such false representations were made by her for the purpose of inducing said The National Bank of Athens to deliver to her the proceeds of said loan, and for the purpose of inducing said J. C. Stiles to endorse said note as surety with the intention of cheating and defrauding said The National Bank of Athens and J. C. Stiles; and said The National Bank of Athens and J. C. Stiles relied on the truth of said representations and were thereby deceived, and induced to part with said money, and said J. C. Stiles were thereby defrauded and cheated in the amounts of $800.00 principal, plus interest thereon at the rate of 6% per annum from August 3, 1948 to April 25, 1949, as herein set out, contrary to the laws of said State, the good order, peace and dignity thereof.'

The defendant filed demurrers to the indictment which were overruled and exceptions preserved. Upon the trial the evidence showed the facts to be as set out in the accusation, with such exceptions as are discussed in the body of the opinion. The defendant made a statement in which she contended that the remaining $276.00 after $500.00 was paid the prosecutor for back rent was used for roofing and fertilizer on his property in accordance with an agreement between them. The jury found the defendant guilty, whereupon she was sentenced to serve twelve months and to make restitution in the amount of $800, the restitution being a condition of probation.

The defendant filed a motion for a new trial on the general grounds which was later amended by the addition of five special grounds, and the overruling of this motion is assigned as error.

Dorsey Davis, Athens, Fred A. Gillen, Lexington, for plaintiff in error.

Preston M. Almand, Sol., Eugene A. Epting, Athens, for defendant in error.

TOWNSEND, Judge (after stating the foregoing facts).

1. The second ground of demurrer has been deleted from the record in this case. Grounds 1, 3, 4 and 5 attack the petition generally on the grounds that it fails to charge the defendant with any offense, is duplicitous, shows that no loss was sustained by the prosecutor or the National Bank of Athens, and shows that the payment of J. C. Stiles was a voluntary payment.

'The essential requisites in the offense of cheating and swindling by false representations are: (a) That the representations were made; (b) that they were knowingly and designedly false; (c) that they were made with intent to deceive and defraud; (d) that they did deceive and defraud; (e) that they related to an existing fact or past event; (f) that the party to whom the false statements were made, relying on their truth, was thereby induced to part with his property.' Goddard v. State, 2 Ga.App. 154, 58 S.E. 304; Jacobs v. State, 4 Ga.App. 509(2), 61 S.E. 924; Fischer v. State, 46 Ga.App. 207, 167 S.E. 200. The accusation charges that the defendant falsely represented to J. C. Stiles that she was the owner of certain farm machinery for the purpose of inducing him to indorse a note to the bank secured by a bill of sale to such machinery, that this was untrue but that Stiles, relying upon the representation, did endorse the note and was thereby induced to undergo a liability because of which he was forced to part with the sum of $800. The mere fact that his monetary loss was delayed until after the...