2 Ga. App. 689 | Ga. Ct. App. | 1907
The defendant, Cohen, was convicted of the offense of cheating and swindling, in the city court of Fitzgerald, and carried his case, by certiorari, to the superior court, where the certiorari was overruled. In the bill of exceptions there is not only the general assignment that the court erred in overruling the certiorari, but it is insisted that the court erred in not granting a new trial on each and every one of {he more than fifty
The demurrer to the accusation was properly overruled. The accusation was as follows: “Whereas Isidor Gelders did, on the 17th day of April in the jrear 1905, make before D. W. Paulk, J. P., an affidavit charging S. 11. Cohen with the offense hereinafter mentioned, now I, L. Kennedy, county solicitor, in the name of the State of Georgia, do charge and accuse — basing this accusation upon the affidavit aforesaid — the said S. M. Cohen with the offense of cheating and swindling; for that the said Cohen, on the 13th day of March, in the year 1902, in the comity aforesaid, with force and arms, with intent to cheat and defraud said Isidor Gelders, did falsely and fraudulently represent to said Gelders-that he, the said Cohen, was then and there the owner of a certain lot of land in the city of Fitzgerald, in said county, namely, city lot number 26, in square number 13, in block number 7, in said city of Fitzgerald, according to the plat of said city made by the American Tribune Soldiers Colony Company; and did then and there, by said false and fraudulent representations, induce said Isidor Gelders to purchase said city lot of land from the said Cohen, and to pay him, the said Cohen, for the same, the sum of seven hundred and seventy-five dollars in money;'the said representations being wholly false, and having been made falsely and fraudulently and with intent to deceive, and did deceive the said Isidor Gelders as aforesaid; and the said Gelders having relied upon the said false and fraudulent representations as being true, and, upon the faith of said false and fraudulent representations, purchased said city lot of land from said S. M. Cohen and paid
The demurrer was based on four grounds. The first is general and depends upon the three which follow it; and the second ground, which objects to the joinder of the two counts, is not now insisted upon. The third and fourth grounds of the demurrer attack the accusation specially, the third insisting that the offense, as appears upon the face of each count, is barred by the statute of limitations, and the fourth objecting to the allegation that the offense was
The’decision in the McLane case, supra, was made upon a ruling on a motion in arrest of judgment, where it appeared upon the-face of the indictment itself that the offense was barred; and the motion was sustained upon the express ground that the exception, which is relied upon to relieve the bar of the statute of limitations must be alleged so as to enable the defendant to prepare his defense. We hold that it is only necessary for the indictment tosíate which exception is relied upon, in the language used in the-Penal Code, §30. Whether the defendant had absconded from the State or concealed himself to prevent arrest, or whether the-offense was unknown or the offender was undiscove-rable until a. certain named day, would be amply sufficient. In the McLane case, supra (p. 340), the court says: “The public law of the State declares that the defendant shall not be indicted for the offense of arson, after the expiration of four- years from the commission of the offense, unless the offender shall abscond, or conceal himself, that he can not be arrested, or the offender was unknown. Here is an indictment, charging the defendant with the offense of arson, on the face of which it appears the offense was* committed more than four years before the indictment was filedl
Our ruling, that it is not necessary for the exception to be more particularly set out in the indictment than by using the words of the Penal Code, (§3), is not in conflict with any authority in this State; and to require more than this of the State would be to require the prosecution to prove facts peculiarly within the knowledge of the defendant, and ofttimes solely within his knowledge. It is true that in the McLane case, supra (p. 342), Judge Warner, who delivered the opinion of the court, intimates that it is only just that the State should prove the exception. But this portion of the decision is clearly obiter, because the only question before the court was as to the sufficiency of the motion in arrest of judgment. In the Hansford case, supra, the record shows that the facts creating the exception were fully set out as to Hansford’s confederates, but as to Hansford himself the fact that he was unknown as one of the offenders is nowhere alleged in the indictment; so that the case was decided on the authority of the McLane case, supra.
In Watkins v. State, 68 Ga. 832, in the second headnote, it was held that as the indictment alleged that the defendant concealed himself and avoided arrest, the indictment was sufficient to bring the ease within the exception. Upon ,an examination of the Watkins indictment in the original record, we find that the only particularization used in the indictment — the language employed —is, “did so conceal himself that he could not be again arrested for about five years until the 7th day of July, 1881.” In the Watkins case the trial court overruled the motion to quash the indictment on the ground that tile offense was barred by the statute of limitations; and the Supreme Court having thereupon held that the exception as to concealment was sufficiently alleged, we think the decision settles it that it is only necessary for the State to affirm the particular exception relied upon by it to relieve the bar of the statute of limitations. It is not necessary to allege with, particularity the facts, or set out the manner in which the exception arose. The statement of the special exception will enable the defendant to prepare to contradict it, and that is sufficient.
Where it is stated that the indictment was not brought within the period of time allowed by the Penal Code, §30, because the of
As to the exceptions contained in the petition for certiorari, it is useless to discuss any of them. No errors are apparent. But if any errors were committed, they were contained in the charge to the jury; and where the evidence requires the verdict, errors in the charge of the court will not necessitate a new trial. Hagar v. State, 71 Ga. 164, and citations. The requests to charge, so far as they were pertinent and legal, were covered by the general charge.
Judgment affirmed.