314 Ga. App. 115
Ga. Ct. App.2012Background
- Babbitt moved to dismiss an indictment charging ten counts of violating OCGA § 16-9-58 for failing to pay after buying agricultural products.
- The purchases involved hundreds of cattle shipped from Laurens County, Georgia to Kansas between Oct and Dec 2007 for $365,350.99.
- The parties communicated by telephone; no written contract or agreed payment deadline; Babbitt was never in Georgia.
- Babbitt paid $105,000 in December 2007 but left a balance of $260,350.99 unpaid.
- The bills of lading indicated title passes when funds are received; the State indicted Babbitt in November 2008.
- The trial court ruled venue was proper and the case proceeded to determine venue and sufficiency of the charges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Laurens County is proper venue for OCGA § 16-9-58 crime. | Babbitt argues venue should be Kansas since acts occurred there. | State argues venue can be Laurens County because elements include payment and acts occurred there. | Venue proper; trial court did not err in denying dismissal. |
| Whether the facts show the offense under § 16-9-58 given payment timing and fraudulent intent. | Babbitt contends no crime since title/payment terms did not occur as cash sale. | Statute covers all sales; fraudulent intent plus failure to pay within 20 days suffices. | There is evidence of fraudulent intent and nonpayment; statute applies beyond cash sales. |
Key Cases Cited
- State v. Kell, 276 Ga. 423 (2003) (venue in doubtful cases; ongoing crime concept remains relevant)
- Garmon v. State, 219 Ga. 575 (1964) (venue tied to where acts occurred and consummation location)
- State v. Evans, 212 Ga.App. 415 (1994) (subjective intent relevant to venue is a jury question)
- Ewell v. State, 245 Ga.App. 610 (2000) (criminal charge dismissal only for face-of-indictment defects)