10 S.E.2d 80 | Ga. Ct. App. | 1940
1. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested. However, a motion to quash does not question the competency or sufficiency of the evidence which induced the judgment, nor is it a proper method of raising the question as to variance between allegation and proof, it being in the nature of a general demurrer to the accusation. McCard v. State,
2. A note on the back of which appears: "This note is to bear interest at the rate of 7 per cent. Said note is given against my residence at 10 Candler Road, Brookhaven, Georgia," signed by the maker, is sufficient to constitute a mortgage under the Code, § 67-102.
3. "Where a debtor executed to two creditors separate mortgages to secure debts due to them respectively, and it appears that, in procuring the *13
credit to secure which the last mortgage was executed, he represented to the mortgage that the property mortgaged was unincumbered, such misrepresentation can not be made the basis of a prosecution for cheating and swindling under section 4587 [ § 26-740] of the Code, unless it be shown that in consequence thereof the second mortgagee has been in fact defrauded, and that in extending the credit upon the faith of such misrepresentation he has sustained a loss. . . In such a case the burden is upon the State, not only to establish the misrepresentation made and the credit given, but likewise a loss; and where the evidence shows that the mortgaged property has neither been sold, nor appropriated to the extinguishment of the senior mortgage, there is no such evidence of a loss by the junior mortgagee as will sustain a conviction of the debtor; especially is this true, where the evidence shows that the mortgaged property exceeds in value the aggregate indebtedness represented in both the mortgages, and it does not appear that the senior mortgage is being either claimed against the mortgagor, or enforced against the mortgaged property." McGee v. State,
4. In the instant case, under the ruling in the McGee case, it does not appear that the prosecutor has suffered any pecuniary loss. It does not appear that the property in question was valued or was put up for sale at a foreclosure sale; nor does it appear that the property was appropriated to the extinguishment of the prior loan deed; and there is no such evidence of a loss by the mortgagee as will sustain a conviction of the defendant for cheating and swindling. (See dissent.)
1. The defendant moved to quash the accusation, on the grounds that there was a variance between the proof and the accusation, and that the evidence did not support the accusation. An indictment may be quashed on oral motion for any defect for which the judgment on it should be arrested; that is, for some defect appearing on the face of the record.Gilmore v. State,
2. The defendant contends that the instrument was not sufficient to constitute a mortgage or security, and that the money was lent on an unsecured negotiable instrument. The Code, § 67-102, declares: "No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect." Any language showing an intent to mortgage (creation of a lien) is sufficient. Horton
v. Murden,
We are not unmindful that this court, in Bolton v. State,
In the instant case it nowhere appears from the evidence that the prosecutor has suffered a pecuniary loss. It does appear that there was a previous loan deed upon the residence of the defendant, dated February 26, 1937, in the amount of $1800, on which was due $1680. The loan in question was made to the defendant on July 26, 1937, in the sum of $500, Mrs. Bertha Zelien lending $450 and Miss Ida Zelien lending $50. The defendant represented to the prosecutors, "I do not owe a dime on it" (the residence), and that the residence at 10 Candler Road was free of any loan or encumbrance. The note in question was due November 15, 1937, and was not paid. About two months before the defendant's arrest Ida Zelien told the defendant that her mother needed the money and the defendant told her that she was not able to pay it back at that time, but would as soon as she was able. On Sunday, July 31, 1938, Mrs. Zelien and Ida Zelien went to Indian Springs, Georgia, where the defendant was working, and stated they needed the money. The defendant told them she would meet them in Atlanta on Tuesday, August 2, and asked Ida to make an appointment for her at the Arcade Beauty Shop for 7:30 a. m. on August 2. When the defendant arrived at the beauty shop she was arrested. It does not appear that the property was valued or was *17
put up for sale on foreclosure; nor does it appear that the property was appropriated to the extinguishment of the prior loan deed. Where the evidence merely shows that representations were made by the defendant that she owned certain property, and that it was unencumbered by mortgages or liens, and upon the faith of these representations a mortgage was taken, when in fact there was a valid recorded mortgage on the same property, this alone does not prove loss; for if both mortgages were foreclosed and the property sold at public outcry, it might bring more than the amount of both debts to secure which the mortgages were given. To hold the defendant guilty of cheating and swindling under such facts would be in effect to imprison her for a debt. The State of Georgia was founded as a haven for those imprisoned for debt, and it has been the policy of this State, from its inception to the present day, to oppose and discourage any action that savours of punishment for debt. The evidence in the instant case did not authorize a conviction, and the judge erred in overruling the certiorari. See generally, McGee v. State, supra;Albert v. State,
Judgment reversed. Gardner, J., concurs. Broyles, C. J., dissents.